CASE 1: G.R. No.
173034 October 9, 2007 measures to diminish infant and child mortality, and ensure that all segments of society,
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner, vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN
P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL
MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA,
AND DR. NEMESIO T. GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for
an infant is 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 112 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From
1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should
be supported, promoted and protected, hence, it should be ensured that nutrition and
health claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the
Child. Article 24 of said instrument provides that State Parties should take appropriate
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 agreements 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 of
Appeals, 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.
We note that, under its Articles of Incorporation, the respondent was organized 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. 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. 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.
Herein petitioner's Amended Articles of Incorporation contains a similar provision
just like in Executive Secretary, that the association is formed "to represent directly or
through approved representatives the pharmaceutical and health care industry before the
Philippine Government and any of its agencies, the medical professions and the general
public."8 Thus, as an organization, petitioner definitely has an interest in fulfilling its avowed
purpose of representing members who are part of the pharmaceutical and health care
industry. Petitioner is duly authorized9 to take the appropriate course of action to bring to
the attention of government agencies and the courts any grievance suffered by its members
which are directly affected by the RIRR. Petitioner, which is mandated by its Amended
Articles of Incorporation to represent the entire industry, would be remiss in its duties if it
fails to act 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
instruments10 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. The transformation method
requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The incorporation method applies when,
by mere constitutional declaration, international law is deemed to have the force of
domestic law.
Treaties become part of the law of the land through 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.
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.
In Mijares v. Ranada, 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.
"Generally accepted principles of international law" refers to norms of general or
customary international law which are binding on all states, i.e., renunciation of war as an
instrument of national policy, the principle of sovereign immunity, a person's right to life,
liberty and due process, and pacta sunt servanda, among others. The concept of "generally
accepted principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a
primary source of international law because they have the "character of jus rationale" and
are "valid through all kinds of human societies." (Judge Tanaka in his dissenting opinion in
the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples
are part of international law because they are "basic to legal systems generally" and hence
part of the jus gentium. These principles, he believes, are established by a process of
reasoning based on the common identity of all legal systems. If there should be doubt or
disagreement, one must look to state practice and determine whether the municipal law
principle provides a just and acceptable solution.
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.
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.
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice.
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.
Clearly, customary international law is deemed incorporated into our domestic system.
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, in relation to Article
6325 of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines
the policies of the WHO, and has the power to adopt regulations concerning "advertising
and labeling of biological, pharmaceutical and similar products moving in international
commerce," and to "make recommendations to members with respect to any matter within
the competence of the Organization." 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 behavior.33
Certain declarations and resolutions of the UN General Assembly fall under this category.34
The most notable is the UN Declaration of Human Rights, which this Court has enforced in
various cases, specifically, Government of Hongkong Special Administrative Region v.
Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-la International
Hotel Management, Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency attached
to the UN with the mandate to promote and protect intellectual property worldwide, has
resorted to soft law as a rapid means of norm creation, in order "to reflect and respond to
the changing needs and demands of its constituents."39 Other international organizations
which have resorted to soft law include the International 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 4(e). "Infant" means a person falling within the age bracket of 0-12 months.
Section 2. Purpose – These Revised Rules and Regulations are hereby promulgated to ensure
the provision of safe and adequate nutrition for infants and young children by the
promotion, protection and support of breastfeeding and by ensuring the proper use of
breastmilk substitutes, breastmilk supplements and related products when these are
medically indicated and only when necessary, on the basis of adequate information and
through appropriate marketing and distribution.
Section 5(ff). "Young Child" means a person from the age of more than twelve (12) months
up to the age of three (3) years (36 months).
2. The Milk Code recognizes that infant formula may be a proper and possible substitute for
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 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 4. Declaration of Principles – The following are the underlying principles from which
the revised rules and regulations are premised upon:
a. Exclusive breastfeeding is for infants from 0 to six (6) months.
b. There is no substitute or replacement for breastmilk.
3. The Milk Code only regulates and does not impose unreasonable requirements for
advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk
substitutes intended for infants from 0-24 months old or beyond, and forbids the use of
health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in
the promotion of products within the scope of the Code, is vague:
MILK CODE
RIRR
SECTION 6. The General Public and Mothers. –
(a) No advertising, promotion or other marketing materials, whether written, audio or
visual, for 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:
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,
intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Section 15. Content of Materials. - The following shall not be included in advertising,
promotional and marketing materials:
a. Texts, pictures, illustrations or information which discourage or tend to
undermine the benefits or superiority of breastfeeding or which idealize the use of
breastmilk substitutes and milk supplements. In this connection, no pictures of babies and
children together with their mothers, fathers, siblings, grandparents, other relatives or
caregivers (or yayas) shall be used in any advertisements for infant formula and breastmilk
supplements;
b. The term "humanized," "maternalized," "close to mother's milk" or similar words
in describing breastmilk substitutes or milk supplements;
c. Pictures or texts that idealize the use of infant and milk formula.
Section 16. All health and nutrition claims for products within the scope of the Code are
absolutely prohibited. For this purpose, any phrase or words that connotes to increase
emotional, intellectual abilities of the infant and young child and other like phrases shall not
be allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE
RIRR
SECTION 10. Containers/Label. –
(a) Containers and/or labels shall be designed to provide the necessary information about
the 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 26. Content – Each container/label shall contain such message, in both Filipino and
English languages, and which message cannot be readily separated therefrom, relative the
following points:
(a) The words or phrase "Important Notice" or "Government Warning" or their equivalent;
(b) A statement of the superiority of breastfeeding;
(c) A statement that there is no substitute for breastmilk;
(d) A statement that the product shall be used only on the advice of a health worker as to
the need for its use and the proper methods of use;
(e) Instructions for appropriate prepara-tion, and a warning against the health hazards of
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. –
(b) No facility of the health care system shall be used for the purpose of promoting infant
formula or other products within the scope of this Code. This Code does not, however,
preclude the dissemination of information to health professionals as provided in Section
8(b).

SECTION 8. Health Workers. -
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and factual
matters and such 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).
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 16. All health and nutrition claims for products within the scope of the Code are
absolutely prohibited. For this purpose, any phrase or words that connotes to increase
emotional, intellectual abilities of the infant and young child and other like phrases shall not
be allowed.
6. The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids the
same.
MILK CODE
RIRR
SECTION 8. Health Workers –
(e) Manufacturers and distributors of products within the scope of this Code may assist in
the 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 Mothers. –
(f) Nothing herein contained shall prevent donations from manufacturers and distributors of
products within the scope of this Code upon request by or with the approval of the Ministry
of Health.
Section 51. Donations Within the Scope of This Code - Donations of products, materials,
defined and covered under the Milk Code and these implementing rules and regulations,
shall be strictly prohibited.
Section 52. Other Donations By Milk Companies Not Covered by this Code. - Donations of
products, equipments, and the like, not otherwise falling within the scope of this Code or
these Rules, given by milk companies and their agents, representatives, whether in kind or
in cash, may only be coursed through the Inter Agency Committee (IAC), which shall
determine whether such donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE
RIRR
Section 46. Administrative Sanctions. – The following administrative sanctions shall be
imposed upon any person, juridical or natural, found to have violated the provisions of the
Code and its 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;
c) 3rd violation – Administrative Fine of a minimum of Sixty Thousand (P60,000.00)
to One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and extent of
the violation, and in addition thereto, the recall of the offending product, and suspension of
the Certificate of Product Registration (CPR);
d) 4th violation –Administrative Fine of a minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos, depending on the gravity and
extent of the violation; and in addition thereto, the recall of the product, revocation of the
CPR, suspension of the License to 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 242 and 5(ff) of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not
recognize that breastmilk substitutes may be a proper and possible substitute for
breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and
construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and
phrases in the Rule should not be studied as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the meaning of any of its parts
and in order to produce a harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the
use of breastmilk substitutes is proper if based on complete and updated information."
Section 8 of the RIRR also states that information and educational materials should include
information on the proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of
breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as they are
interlinked with each other.
To resolve the question of whether the labeling requirements and advertising
regulations under the RIRR are valid, it is important to deal first with the nature, purpose,
and depth of the regulatory powers of the DOH, as defined in general under the 1987
Administrative Code,47 and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer span of
jurisprudence on that 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.
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. 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."
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 –
(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.
(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-à-vis breastmilk substitutes, supplement and related products, in the
following manner:
SECTION 5.
(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 –
(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.
(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis
supplied)
The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure
that the information that would reach pregnant women, mothers of infants, and health
professionals and workers in the health care system is restricted to scientific and factual
matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control
information 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 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to
breastmilk; and b) that there be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used appropriately. Section 1657 of
the RIRR prohibits all health and nutrition claims for products within the scope of the Milk
Code, such as claims of increased emotional and intellectual abilities of the infant and young
child.
These requirements and limitations are consistent with the provisions of Section 8 of the
Milk Code, to wit:
SECTION 8. Health workers -
(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 5.58 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 be consistent, at the same time giving
the government control over planning, provision, design, and dissemination of information
on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the
product offered is not a substitute for breastmilk, is a reasonable means of enforcing Section
8(b) of the Milk Code and deterring circumvention of the protection and promotion of
breastfeeding as embodied in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements
Section 5(b) of the Milk Code which reads:
SECTION 5.
(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.
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that formula milk is
prone to contaminations and there is as yet no technology that allows production of
powdered infant formula that eliminates all forms of contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the
message regarding health hazards including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk
substitutes and supplements and related products cannot be questioned. It is its
intervention into the area of 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 breastmilk substitutes and/or replacements, as well as related products covered
within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for
breastmilk substitutes in line with the RIRR’s declaration of principle under Section 4(f), to
wit:
SECTION 4. Declaration of Principles –
(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: 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
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.
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.
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.
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.
ASSOCIATE JUSTICE SANTIAGO: 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.

ASSOCIATE JUSTICE NAZARIO: 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.
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 –
(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.
SECTION 8. Health Workers. –
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and factual
matters and such 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).
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, the Court held:
[T]his Court had, in the past, accepted as sufficient standards the following: "public
interest," "justice and equity," "public convenience and welfare," and "simplicity, economy
and welfare."
In this case, correct information as to infant feeding and nutrition is infused with public
interest and welfare.
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) of the Milk Code, in relation to Section 8(b) 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) of the RIRR prohibiting milk manufacturers' and distributors'
participation in any policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not
form part of any policymaking body or entity in relation to the advancement of
breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code.
Note that under Section 12(b) of the Milk Code, it is the DOH which shall be principally
responsible for the implementation and enforcement of the provisions of said Code. It is
entirely up to the DOH to decide which entities to call upon or allow to be part of
policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk 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
2270 of the RIRR does not pertain to research assistance to or the continuing education of
health professionals; rather, it deals with breastfeeding promotion and education for
women and children. Nothing in Section 22 of the RIRR prohibits milk companies from giving
assistance for research or continuing education to health professionals; hence, petitioner's
argument against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of
the RIRR provide that research assistance for health workers and researchers may be
allowed upon approval of an ethics committee, and with certain disclosure requirements
imposed on the milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or
educational assistance may be given by milk companies or under what conditions health
workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations
on the kind of research done or extent of assistance given by milk companies are completely
in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving
assistance, support, logistics or training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e) 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 5175 of the RIRR which sets forth its
policy not to request or approve donations from manufacturers and distributors of
breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any
donation from milk companies not covered by the Code should be coursed through the IAC
which shall determine whether such donation should be accepted or refused. As reasoned
out by respondents, the DOH is not mandated by the Milk Code to accept donations. For
that matter, no person or entity can be forced to accept a donation. There is, therefore, no
real inconsistency between the RIRR and the law because the Milk Code does not prohibit
the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not
found in the Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. 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., 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.
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to the
RIRR is frivolous.
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:
[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 5289 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, it
was held thus:
Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine
Coconut Authority, despite the fact that "our present Constitution enshrines free enterprise
as a policy, it nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare." There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to our environment. Thus, in the
aforecited case, the Court declared that "free enterprise does not call for removal of
‘protective regulations’." x x x It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in the restraint of trade.
[Emphasis and 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 of breastmilk
substitutes. Petitioner has not established that the proscribed activities are indispensable to
the trade of breastmilk substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and oppressive for being in
restraint of trade.
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 (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.
(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 VOID for being ultra vires.
The Department of Health and respondents are PROHIBITED from implementing said
provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of
the provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.
CASE 2: G.R. No. 141284 August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN.
PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines
(the "Marines") to join the Philippine National Police (the "PNP") in visibility patrols around
the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies,
kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and the
Marines to conduct joint visibility patrols for the purpose of crime prevention and
suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of
the Philippines (the "AFP"), the Chief of the PNP and the Secretary of the Interior and Local
Government were tasked to execute and implement the said order. In compliance with the
presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay,
formulated Letter of Instruction 02/20001 (the "LOI") which detailed the manner by which
the joint visibility patrols, called Task Force Tulungan, would be conducted.2 Task Force
Tulungan was placed under the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the
Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the
AFP and the PNP Chief.3 In the Memorandum, the President expressed his desire to improve
the peace and order situation in Metro Manila through a more effective crime prevention
program including increased police patrols.4 The President further stated that to heighten
police visibility in the metropolis, augmentation from the AFP is necessary.5 Invoking his
powers as Commander-in-Chief under Section 18, Article VII of the Constitution, the
President directed the AFP Chief of Staff and PNP Chief to coordinate with each other for
the proper deployment and utilization of the Marines to assist the PNP in preventing or
suppressing criminal or lawless violence.6 Finally, the President declared that the services of
the Marines in the anti-crime campaign are merely temporary in nature and for a
reasonable period only, until such time when the situation shall have improved.7
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine
Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression
of crime prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but
also by organized syndicates whose members include active and former police/military
personnel whose training, skill, discipline and firepower prove well-above the present
capability of the local police alone to handle. The deployment of a joint PNP NCRPO-
Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the
incidence of crimes specially those perpetrated by active or former police/military
personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility
patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to
minimize or eradicate all forms of high-profile crimes especially those perpetrated by
organized crime syndicates whose members include those that are well-trained, disciplined
and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional
Police Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve
the internal security of the state against insurgents and other serious threat to national
security, although the primary responsibility over Internal Security Operations still rests
upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile
crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept
requires the military and police to work cohesively and unify efforts to ensure a focused,
effective and holistic approach in addressing crime prevention. Along this line, the role of
the military and police aside from neutralizing crime syndicates is to bring a wholesome
atmosphere wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units
are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force
"TULUNGAN" shall be organized to provide the mechanism, structure, and procedures for
the integrated planning, coordinating, monitoring and assessing the security situation.
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM
City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center,
LRT/MRT Stations and the NAIA and Domestic Airport.9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null
and void and unconstitutional, arguing that:
I the armed forces is subject to judicial review; and, (3) Whether or not the calling of the
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE
CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY
REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A
CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE
XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO
PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS
UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE
UNDER THE CONSTITUTION.10
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty
to uphold the rule of law and the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,11 dated 25 January
2000, required the Solicitor General to file his Comment on the petition. On 8 February
2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in
deploying the Marines, contending, among others, that petitioner has no legal standing; that
the question of deployment of the Marines is not proper for judicial scrutiny since the same
involves a political question; that the organization and conduct of police visibility patrols,
which feature the team-up of one police officer and one Philippine Marine soldier, does not
violate the civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the President’s factual determination of the necessity of calling
armed forces to assist the PNP in joint visibility patrols violates the constitutional provisions
on civilian supremacy over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing
to raise the issues in the petition. Second, the President did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction nor did he commit a violation of the
civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of
judicial review only if the following requisites are complied with, namely: (1) the existence
of an actual and appropriate case; (2) a personal and substantial interest of the party raising
the constitutional question; (3) the exercise of judicial review is pleaded at the earliest
opportunity; and (4) the constitutional question is the lis mota of the case.
The IBP has not sufficiently complied with the requisites of standing in this case.
"Legal standing" or locus standi has been defined as a personal and substantial interest in
the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The term "interest" means a material interest, an
interest in issue affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. The gist of the question of standing is whether a
party alleges "such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions."
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP
asserts no other basis in support of its locus standi. The mere invocation by the IBP of its
duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient
to clothe it with standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. Based on the standards above-stated, the IBP has failed to
present a specific and substantial interest in the resolution of the case. Its fundamental
purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards
of the law profession and to improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted that the interest of the
National President of the IBP who signed the petition, is his alone, absent a formal board
resolution authorizing him to file the present action. To be sure, members of the BAR, those
in the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming
that it has duly authorized the National President to file the petition, has not shown any
specific injury which it has suffered or may suffer by virtue of the questioned governmental
act. Indeed, none of its members, whom the IBP purportedly represents, has sustained any
form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged
that any of its members has been arrested or that their civil liberties have been violated by
the deployment of the Marines. What the IBP projects as injurious is the supposed
"militarization" of law enforcement which might threaten Philippine democratic institutions
and may cause more harm than good in the long run. Not only is the presumed "injury" not
personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the
requirement of standing. Since petitioner has not successfully established a direct and
personal injury as a consequence of the questioned act, it does not possess the personality
to assail the validity of the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to raise constitutional issues now
or in the future. The IBP must, by way of allegations and proof, satisfy this Court that it has
sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing when
paramount interest is involved.16 In not a few cases, the Court has adopted a liberal
attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people. Thus, when the issues raised are of paramount
importance to the public, the Court may brush aside technicalities of procedure. In this case,
a reading of the petition shows that the IBP has advanced constitutional issues which
deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are under constant threat and lawless
violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency
problem, the legal controversy raised in the petition almost certainly will not go away. It will
stare us in the face again. It, therefore, behooves the Court to relax the rules on standing
and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid the
PNP in visibility patrols. In this regard, the IBP admits that the deployment of the military
personnel falls under the Commander-in-Chief powers of the President as stated in Section
18, Article VII of the Constitution, specifically, the power to call out the armed forces to
prevent or suppress lawless violence, invasion or rebellion. What the IBP questions,
however, is the basis for the calling of the Marines under the aforestated provision.
According to the IBP, no emergency exists that would justify the need for the calling of the
military to assist the police force. It contends that no lawless violence, invasion or rebellion
exist to warrant the calling of the Marines. Thus, the IBP prays that this Court "review the
sufficiency of the factual basis for said troop [Marine] deployment."
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity
of calling the armed forces is not proper for judicial scrutiny since it involves a political
question and the resolution of factual issues which are beyond the review powers of this
Court.
As framed by the parties, the underlying issues are the scope of presidential powers and
limits, and the extent of judicial review. But, while this Court gives considerable weight to
the parties’ formulation of the issues, the resolution of the controversy may warrant a
creative approach that goes beyond the narrow confines of the issues raised. Thus, while
the parties are in agreement that the power exercised by the President is the power to call
out the armed forces, the Court is of the view that the power involved may be no more than
the maintenance of peace and order and promotion of the general welfare.20 For one, the
realities on the ground do not show that there exist a state of warfare, widespread civil
unrest or anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a
point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes
in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the President’s powers as protector of
the peace. [Rossiter, The American Presidency]. The power of the President to keep the
peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not
in any way diminished by the relative want of an emergency specified in the commander-in-
chief provision. For in making the President commander-in-chief the enumeration of powers
that follow cannot be said to exclude the President’s exercising as Commander-in-Chief
powers short of the calling of the armed forces, or suspending the privilege of the writ of
habeas corpus or declaring martial law, in order to keep the peace, and maintain public
order and security.
Nonetheless, even if it is conceded that the power involved is the President’s power to call
out the armed forces to prevent or suppress lawless violence, invasion or rebellion, the
resolution of the controversy will reach a similar result.
We now address the Solicitor General’s argument that the issue involved is not susceptible
to review by the judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.22 It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even in
instances that are ripe for resolution. One class of cases wherein the Court hesitates to rule
on are "political questions." The reason is that political questions are concerned with issues
dependent upon the wisdom, not the legality, of a particular act or measure being assailed.
Moreover, the political question being a function of the separation of powers, the courts will
not normally interfere with the workings of another co-equal branch unless the case shows
a clear need for the courts to step in to uphold the law and the Constitution.
As Tañada v. Cuenco23 puts it, political questions refer "to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive branch
of government." Thus, if an issue is clearly identified by the text of the Constitution as
matters for discretionary action by a particular branch of government or to the people
themselves then it is held to be a political question. In the classic formulation of Justice
Brennan in Baker v. Carr,24 "[p]rominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the impossibility of a 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 embarassment from multifarious
pronouncements by various departments on the one question."
The 1987 Constitution expands the concept of judicial review by providing that "(T)he
Judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government."25
Under this definition, the Court cannot agree with the Solicitor General that the issue
involved is a political question beyond the jurisdiction of this Court to review. When the
grant of power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected, is
justiciable - the problem being one of legality or validity, not its wisdom.26 Moreover, the
jurisdiction to delimit constitutional boundaries has been given to this Court.27 When
political questions are involved, the Constitution limits the determination as to whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the official whose action is being questioned.28
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment
that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law, as where the power
is exercised in an arbitrary and despotic manner by reason of passion or hostility.29 Under
this definition, a court is without power to directly decide matters over which full
discretionary authority has been delegated. But while this Court has no power to substitute
its judgment for that of Congress or of the President, it may look into the question of
whether such exercise has been made in grave abuse of discretion.30 A showing that
plenary power is granted either department of government, may not be an obstacle to
judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable
controversy.
When the President calls the armed forces to prevent or suppress lawless violence, invasion
or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This
is clear from the intent of the framers and from the text of the Constitution itself. The Court,
thus, cannot be called upon to overrule the President’s wisdom or substitute its own.
However, this does not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the President’s decision is totally bereft of
factual basis. The present petition fails to discharge such heavy burden as there is no
evidence to support the assertion that there exist no justification for calling out the armed
forces. There is, likewise, no evidence to support the proposition that grave abuse was
committed because the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military. In the performance of this
Court’s duty of "purposeful hesitation" before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court
interfere with the President’s judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the
exercise of such power. Section 18, Article VII of the Constitution, which embodies the
powers of the President as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus, or place the Philippines or any part thereof under martial law.
The full discretionary power of the President to determine the factual basis for the exercise
of the calling out power is also implied and further reinforced in the rest of Section 18,
Article VII which reads, thus:
Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation
or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall
be judicially charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and
the Court may review the sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the President’s action to call
out the armed forces. The distinction places the calling out power in a different category
from the power to declare martial law and the power to suspend the privilege of the writ of
habeas corpus, otherwise, the framers of the Constitution would have simply lumped
together the three powers and provided for their revocation and review without any
qualification. Expressio unius est exclusio alterius. Where the terms are expressly limited to
certain matters, it may not, by interpretation or construction, be extended to other matters.
That the intent of the Constitution is exactly what its letter says, i.e., that the power to call is
fully discretionary to the President, is extant in the deliberation of the Constitutional
Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of
the President as Commander-in-Chief. First, he can call out such Armed Forces as may be
necessary to suppress lawless violence; then he can suspend the privilege of the writ of
habeas corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the
writ of habeas corpus, his judgment is subject to review. We are making it subject to review
by the Supreme Court and subject to concurrence by the National Assembly. But when he
exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is
my opinion that his judgment cannot be reviewed by anybody.
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be
handled by the first sentence: "The President may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion." So we feel that that is sufficient for
handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter
can be handled by the First Sentence: "The President....may call out such Armed Forces to
prevent or suppress lawless violence, invasion or rebellion." So we feel that that is sufficient
for handling imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of
the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.34
The reason for the difference in the treatment of the aforementioned powers highlights the
intent to grant the President the widest leeway and broadest discretion in using the power
to call out because it is considered as the lesser and more benign power compared to the
power to suspend the privilege of the writ of habeas corpus and the power to impose
martial law, both of which involve the curtailment and suppression of certain basic civil
rights and individual freedoms, and thus necessitating safeguards by Congress and review by
this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to
suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions
must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must
require it. These conditions are not required in the case of the power to call out the armed
forces. The only criterion is that "whenever it becomes necessary," the President may call
the armed forces "to prevent or suppress lawless violence, invasion or rebellion." The
implication is that the President is given full discretion and wide latitude in the exercise of
the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters considered for satisfying
the same is a combination of several factors which are not always accessible to the courts.
Besides the absence of textual standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the
courts. In many instances, the evidence upon which the President might decide that there is
a need to call out the armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and mass
destruction of property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any effect at all. Such
a scenario is not farfetched when we consider the present situation in Mindanao, where the
insurgency problem could spill over the other parts of the country. The determination of the
necessity for the calling out power if subjected to unfettered judicial scrutiny could be a
veritable prescription for disaster, as such power may be unduly straitjacketed by an
injunction or a temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in
his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was
gravely abused, the President’s exercise of judgment deserves to be accorded respect from
this Court.
The President has already determined the necessity and factual basis for calling the armed
forces. In his Memorandum, he categorically asserted that, "[V]iolent crimes like bank/store
robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila..." We
do not doubt the veracity of the President’s assessment of the situation, especially in the
light of present developments. The Court takes judicial notice of the recent bombings
perpetrated by lawless elements in the shopping malls, public utilities, and other public
places. These are among the areas of deployment described in the LOI 2000. Considering all
these facts, we hold that the President has sufficient factual basis to call for military aid in
law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it
infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the
Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law
enforcement is "militarized" in violation of Section 3, Article II36 of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of
military assets for civilian law enforcement. The participation of the Marines in the conduct
of joint visibility patrols is appropriately circumscribed. The limited participation of the
Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes
and bounds of the Marines’ authority. It is noteworthy that the local police forces are the
ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In
fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint
visibility patrols. Under the LOI, the police forces are tasked to brief or orient the soldiers on
police patrol procedures. It is their responsibility to direct and manage the deployment of
the Marines.39 It is, likewise, their duty to provide the necessary equipment to the Marines
and render logistical support to these soldiers.40 In view of the foregoing, it cannot be
properly argued that military authority is supreme over civilian authority. Moreover, the
deployment of the Marines to assist the PNP does not unmake the civilian character of the
police force. Neither does it amount to an "insidious incursion" of the military in the task of
law enforcement in violation of Section 5(4), Article XVI of the Constitution.
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by
his alleged involvement in civilian law enforcement, has been virtually appointed to a civilian
post in derogation of the aforecited provision. The real authority in these operations, as
stated in the LOI, is lodged with the head of a civilian institution, the PNP, and not with the
military. Such being the case, it does not matter whether the AFP Chief actually participates
in the Task Force Tulungan since he does not exercise any authority or control over the
same. Since none of the Marines was incorporated or enlisted as members of the PNP, there
can be no appointment to civilian position to speak of. Hence, the deployment of the
Marines in the joint visibility patrols does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no "insidious incursion" of the
military in civilian affairs nor can there be a violation of the civilian supremacy clause in the
Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists
in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting
the assistance of the military in the implementation and execution of certain traditionally
"civil" functions. As correctly pointed out by the Solicitor General, some of the multifarious
activities wherein military aid has been rendered, exemplifying the activities that bring both
the civilian and the military together in a relationship of cooperation, are:
1. Elections;
2. Administration of the Philippine National Red Cross;
3. Relief and rescue operations during calamities and disasters;
4. Amateur sports promotion and development;
5. Development of the culture and the arts;
6. Conservation of natural resources;
7. Implementation of the agrarian reform program;
8. Enforcement of customs laws;
9. Composite civilian-military law enforcement activities;
10. Conduct of licensure examinations;
11. Conduct of nationwide tests for elementary and high school students;
12. Anti-drug enforcement activities;
13. Sanitary inspections;
14. Conduct of census work;
15. Administration of the Civil Aeronautics Board;
16. Assistance in installation of weather forecasting devices;
17. Peace and order policy formulation in local government units.
This unquestionably constitutes a gloss on executive power resulting from a systematic,
unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never
before questioned. What we have here is mutual support and cooperation between the
military and civilian authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of
military force for domestic purposes has persisted, and whose Constitution, unlike ours,
does not expressly provide for the power to call, the use of military personnel by civilian law
enforcement officers is allowed under circumstances similar to those surrounding the
present deployment of the Philippine Marines. Under the Posse Comitatus Act61 of the US,
the use of the military in civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution
or Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or
otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more
than two years, or both.
To determine whether there is a violation of the Posse Comitatus Act in the use of military
personnel, the US courts63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens to the
exercise of military power which was regulatory, proscriptive, or compulsory64 George
Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards
for assessing acceptable involvement of military personnel in civil law enforcement. See
likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH
MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or
prospectively?
When this concept is transplanted into the present legal context, we take it to mean that
military involvement, even when not expressly authorized by the Constitution or a statute,
does not violate the Posse Comitatus Act unless it actually regulates, forbids or compels
some conduct on the part of those claiming relief. A mere threat of some future injury
would be insufficient.
Even if the Court were to apply the above rigid standards to the present case to determine
whether there is permissible use of the military in civilian law enforcement, the conclusion is
inevitable that no violation of the civilian supremacy clause in the Constitution is committed.
On this point, the Court agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A65 does not constitute the exercise of regulatory,
proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6, 8(k) and 9(a) of Annex A. These soldiers, second, also
have no power to prohibit or condemn. In No. 9(d) of Annex A, all arrested persons are
brought to the nearest police stations for proper disposition. And last, these soldiers apply
no coercive force. The materials or equipment issued to them, as shown in No. 8(c) of Annex
A, are all low impact and defensive in character. The conclusion is that there being no
exercise of regulatory, proscriptive or compulsory military power, the deployment of a
handful of Philippine Marines constitutes no impermissible use of military power for civilian
law enforcement.
It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished liberties.
Such apprehensions, however, are unfounded. The power to call the armed forces is just
that - calling out the armed forces. Unless, petitioner IBP can show, which it has not, that in
the deployment of the Marines, the President has violated the fundamental law, exceeded
his authority or jeopardized the civil liberties of the people, this Court is not inclined to
overrule the President’s determination of the factual basis for the calling of the Marines to
prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single
citizen has complained that his political or civil rights have been violated as a result of the
deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil
liberties of the people that the joint visibility patrol was conceived. Freedom and democracy
will be in full bloom only when people feel secure in their homes and in the streets, not
when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
CASE 3: G.R. No. L-45892 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TRANQUILINO LAGMAN,
defendant-appellant.
-----------------------------
G.R. No. L-45893 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PRIMITIVO DE SOSA, defendant-
appellant.
Severino P. Izon for appellants.
Office of the Solicitor-General Tuason for appellee.
AVANCEÑA, J.:
In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and
Primitivo de Sosa are charged with a violation of section 60 of Commonwealth Act No. 1,
known as the National Defense Law. It is alleged that these two appellants, being Filipinos
and having reached the age of twenty years in 1936, willfully and unlawfully refused to
register in the military service between the 1st and 7th of April of said year, notwithstanding
the fact that they had been required to do so. The evidence shows that these two appellants
were duly notified by the corresponding authorities to appear before the Acceptance Board
in order to register for military service in accordance with law, and that the said appellants,
in spite of these notices, had not registered up to the date of the filing of the information.
The appellants do not deny these facts, but they allege in defense that they have
not registered in the military service because Primitivo de Sosa is fatherless and has a
mother and a brother eight years old to support, and Tranquilino Lagman also has a father
to support, has no military learnings, and does not wish to kill or be killed.
Each of these appellants was sentenced by the Court of First Instance to one month
and one day of imprisonment, with the costs.
In this instance, the validity of the National Defense Law, under which the accused
were sentenced, is impugned on the ground that it is unconstitutional. Section 2, Article II of
the Constitution of the Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this
duty all citizens may be required by law to render personal military or civil service.
The National Defense Law, in so far as it establishes compulsory military service,
does not go against this constitutional provision but is, on the contrary, in faithful
compliance therewith. The duty of the Government to defend the State cannot be
performed except through an army. To leave the organization of an army to the will of the
citizens would be to make this duty of the Government excusable should there be no
sufficient men who volunteer to enlist therein.
In the United States the courts have held in a series of decisions that the compulsory
military service adopted by reason of the civil war and the world war does not violate the
Constitution, because the power to establish it is derived from that granted to Congress to
declare war and to organize and maintain an army. This is so because the right of the
Government to require compulsory military service is a consequence of its duty to defend
the State and is reciprocal with its duty to defend the life, liberty, and property of the
citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was
said that, without violating the Constitution, a person may be compelled by force, if need
be, against his will, against his pecuniary interests, and even against his religious or political
convictions, to take his place in the ranks of the army of his country, and risk the chance of
being shot down in its defense. In the case of United States vs. Olson (253 Fed., 233), it was
also said that this is not deprivation of property without due process of law, because, in its
just sense, there is no right of property to an office or employment.
The circumstance that these decisions refer to laws enacted by reason on the actual
existence of war does not make our case any different, inasmuch as, in the last analysis,
what justifies compulsory military service is the defense of the State, whether actual or
whether in preparation to make it more effective, in case of need. The circumstance that the
appellants have dependent families to support does not excuse them from their duty to
present themselves before the Acceptance Board because, if such circumstance exists, they
can ask for determent in complying with their duty and, at all events, they can obtain the
proper pecuniary allowance to attend to these family responsibilities (secs. 65 and 69 of
Commonwealth Act No. 1).
The appealed judgment rendered in these two cases is affirmed, with the costs to the
appellants. So ordered.
CASE 4: G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their
minor children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and
MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose
S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta,
Spouses Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor
children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C.
Castor, Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their
minor children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo
Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their
minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho &
Laura Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of
their minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah
Gerald Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R .
Laws & Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education,
Culture and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA
Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its
Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE
PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato Marcos,
Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES,
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Health; HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT,
HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL,
Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES,
Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National
President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito
M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J.
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF COMMISSIONERS,
Philippine Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND
JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY
PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE
NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as Filipinos For Life,
Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of
the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education;
and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive
Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES,
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUEL A.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-
GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH
MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND
FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR.
and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management, Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law.
And this Court has consistently affirmed this preferred status, well aware that it is "designed
to protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs , and to live as he believes he ought to live,
consistent with the liberty of others and with the common good."
To this day, poverty is still a major stumbling block to the nation's emergence as a
developed country, leaving our people beleaguered in a state of hunger, illiteracy and
unemployment. While governmental policies have been geared towards the revitalization of
the economy, the bludgeoning dearth in social services remains to be a problem that
concerns not only the poor, but every member of society. The government continues to
tread on a trying path to the realization of its very purpose, that is, the general welfare of
the Filipino people and the development of the country as a whole. The legislative branch,
as the main facet of a representative government, endeavors to enact laws and policies that
aim to remedy looming societal woes, while the executive is closed set to fully implement
these measures and bring concrete and substantial solutions within the reach of Juan dela
Cruz. Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is called upon to
adjudicate. Passive, yet reflexive when called into action, the Judiciary then willingly
embarks on its solemn duty to interpret legislation vis-a-vis the most vital and enduring
principle that holds Philippine society together - the supremacy of the Philippine
Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth
control, abortion and contraception. As in every democratic society, diametrically opposed
views on the subjects and their perceived consequences freely circulate in various media.
From television debates to sticker campaigns, from rallies by socio-political activists to mass
gatherings organized by members of the clergy - the clash between the seemingly
antithetical ideologies of the religious conservatives and progressive liberals has caused a
deep division in every level of the society. Despite calls to withhold support thereto,
however, Republic Act (R.A.) No. 10354, otherwise known as the Responsible Parenthood
and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on December 21,
2012.
Shortly after the President placed his imprimatur on the said law, challengers from various
sectors of society came knocking on the doors of the Court, beckoning it to wield the sword
that strikes down constitutional disobedience. Aware of the profound and lasting impact
that its decision may produce, the Court now faces the iuris controversy, as presented in
fourteen (14) petitions and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition, filed by spouses Attys. James M. Imbong
and Lovely Ann C. Imbong, in their personal capacities as citizens, lawyers and taxpayers and
on behalf of their minor children; and the Magnificat Child Leaming Center, Inc., a domestic,
privately-owned educational institution (Jmbong);
(2) Petition for Prohibition, filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche and several others8
in their personal capacities as citizens and on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari, filed by the Task Force for Family and Life Visayas, Inc.,
and Valeriano S. Avila, in their capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition, filed by Serve Life Cagayan De Oro City,
Inc., Rosevale Foundation, Inc., a domestic, privately-owned educational institution, and
several others, in their capacities as citizens (Serve Life);
(5) Petition, filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition, filed by Eduardo Olaguer and the Catholic
Xybrspace Apostolate of the Philippines, in their capacities as a citizens and taxpayers
(Olaguer);
(7) Petition for Certiorari and Prohibition, filed by the Philippine Alliance of
Xseminarians Inc., and several others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition, filed by Reynaldo J. Echavez, M.D. and several others, in their capacities
as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition, filed by spouses Francisco and Maria
Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on
behalf of those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a
member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition, filed by Pro-Life Philippines Foundation
Inc. and several others, in their capacities as citizens and taxpayers and on behalf of its
associates who are members of the Bar (Pro-Life);
(11) Petition for Prohibition, filed by Millennium Saint Foundation, Inc., Attys.
Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in
their capacities as citizens, taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition, filed by John Walter B. Juat and several
others, in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition, filed by Couples for Christ Foundation,
Inc. and several others, in their capacities as citizens (CFC);
(14) Petition for Prohibition filed by Almarim Centi Tillah and Abdulhussein M.
Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention, filed by Atty. Samson S. Alcantara in his capacity as a
citizen and a taxpayer (Alcantara); and
 (16) Petition-In-Intervention, filed by Buhay Hayaang Yumabong (B UHAY) , an
accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH Law
would authorize the purchase of hormonal contraceptives, intra-uterine devices and
injectables which are abortives, in violation of Section 12, Article II of the Constitution which
guarantees protection of both the life of the mother and the life of the unborn from
conception.
• The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal access to
contraceptives which are hazardous to one's health, as it causes cancer and other health
problems.
• The RH Law violates the right to religious freedom. The petitioners contend that
the RH Law violates the constitutional guarantee respecting religion as it authorizes the use
of public funds for the procurement of contraceptives. For the petitioners, the use of public
funds for purposes that are believed to be contrary to their beliefs is included in the
constitutional mandate ensuring religious freedom.
It is also contended that the RH Law threatens conscientious objectors of criminal
prosecution, imprisonment and other forms of punishment, as it compels medical
practitioners 1] to refer patients who seek advice on reproductive health programs to other
doctors; and 2] to provide full and correct information on reproductive health programs and
service, although it is against their religious beliefs and convictions.
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the
RH Law (RH-IRR), provides that skilled health professionals who are public officers such as,
but not limited to, Provincial, City, or Municipal Health Officers, medical officers, medical
specialists, rural health physicians, hospital staff nurses, public health nurses, or rural health
midwives, who are specifically charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.
It is also argued that the RH Law providing for the formulation of mandatory sex
education in schools should not be allowed as it is an affront to their religious beliefs.
While the petit10ners recognize that the guarantee of religious freedom is not
absolute, they argue that the RH Law fails to satisfy the "clear and present danger test" and
the "compelling state interest test" to justify the regulation of the right to free exercise of
religion and the right to free speech.
• The RH Law violates the constitutional provision on involuntary servitude.
According to the petitioners, the RH Law subjects medical practitioners to involuntary
servitude because, to be accredited under the PhilHealth program, they are compelled to
provide forty-eight (48) hours of pro bona services for indigent women, under threat of
criminal prosecution, imprisonment and other forms of punishment.
The petitioners explain that since a majority of patients are covered by PhilHealth, a
medical practitioner would effectively be forced to render reproductive health services since
the lack of PhilHealth accreditation would mean that the majority of the public would no
longer be able to avail of the practitioners services.
• The RH Law violates the right to equal protection of the law. It is claimed that the
RH Law discriminates against the poor as it makes them the primary target of the
government program that promotes contraceptive use. The petitioners argue that, rather
than promoting reproductive health among the poor, the RH Law seeks to introduce
contraceptives that would effectively reduce the number of the poor.
• The RH Law is "void-for-vagueness" in violation of the due process clause of the
Constitution. In imposing the penalty of imprisonment and/or fine for "any violation," it is
vague because it does not define the type of conduct to be treated as "violation" of the RH
Law.
In this connection, it is claimed that "Section 7 of the RH Law violates the right to
due process by removing from them (the people) the right to manage their own affairs and
to decide what kind of health facility they shall be and what kind of services they shall
offer."47 It ignores the management prerogative inherent in corporations for employers to
conduct their affairs in accordance with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain a full
range of family planning methods is plainly to curtail his right to expound only his own
preferred way of family planning. The petitioners note that although exemption is granted
to institutions owned and operated by religious groups, they are still forced to refer their
patients to another healthcare facility willing to perform the service or procedure.
• The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution. It is contended that the RH Law providing for mandatory reproductive health
education intrudes upon their constitutional right to raise their children in accordance with
their beliefs.
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between the spouses
and impedes the right of spouses to mutually decide on matters pertaining to the overall
well-being of their family. In the same breath, it is also claimed that the parents of a child
who has suffered a miscarriage are deprived of parental authority to determine whether
their child should use contraceptives.
• The RH Law violates the constitutional principle of non-delegation of legislative
authority. The petitioners question the delegation by Congress to the FDA of the power to
determine whether a product is non-abortifacient and to be included in the Emergency
Drugs List (EDL).
 • The RH Law violates the one subject/one bill rule provision under Section 26( 1 ),
Article VI of the Constitution.
• The RH Law violates Natural Law.
• The RH Law violates the principle of Autonomy of Local Government Units (LGUs)
and the Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local government level and the ARMM,
infringes upon the powers devolved to LGUs and the ARMM under the Local Government
Code and R.A . No. 9054.
Various parties also sought and were granted leave to file their respective comments-in-
intervention in defense of the constitutionality of the RH Law. Aside from the Office of the
Solicitor General (OSG) which commented on the petitions in behalf of the respondents,
Congressman Edcel C. Lagman,56 former officials of the Department of Health Dr. Esperanza
I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for
Reproductive Health (C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty. Joan De
Venecia60 also filed their respective Comments-in-Intervention in conjunction with several
others. On June 4, 2013, Senator Pia Juliana S. Cayetano was also granted leave to
intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners, pray
for the dismissal of the petitions for the principal reasons that 1] there is no actual case or
controversy and, therefore, the issues are not yet ripe for judicial determination.; 2] some
petitioners lack standing to question the RH Law; and 3] the petitions are essentially
petitions for declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation
took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the
Status Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed
legislation for a period of one hundred and twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties
to determine and/or identify the pertinent issues raised by the parties and the sequence by
which these issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and
on August 6, 13, and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the
SQAO was ordered extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty
(60) days and, at the same time posed several questions for their clarification on some
contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation
and distribution of contraceptive drugs and devices. As far back as June 18, 1966, the
country enacted R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices." Although contraceptive drugs and devices
were allowed, they could not be sold, dispensed or distributed "unless such sale,
dispensation and distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to
"dispensing of abortifacients or anti-conceptional substances and devices." Under Section 37
thereof, it was provided that "no drug or chemical product or device capable of provoking
abortion or preventing conception as classified by the Food and Drug Administration shall be
delivered or sold to any person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population,
which recognized that the population problem should be considered as the principal
element for long-term economic development, enacted measures that promoted male
vasectomy and tubal ligation to mitigate population growth.67 Among these measures
included R.A. No. 6365, approved on August 16, 1971, entitled "An Act Establishing a
National Policy on Population, Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be made part of a broad
educational program; safe and effective means will be provided to couples desiring to space
or limit family size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family
planning a part of a broad educational program," provided "family planning services as a
part of over-all health care," and made "available all acceptable methods of contraception,
except abortion, to all Filipino citizens desirous of spacing, limiting or preventing
pregnancies."
 that the State and its agencies - the entire bureaucracy, from the cabinet secretaries down
Through the years, however, the use of contraceptives and family planning methods evolved to the barangay officials in the remotest areas of the country - is made to play in the
from being a component of demographic management, to one centered on the promotion implementation of the contraception program to the fullest extent possible using taxpayers'
of public health, particularly, reproductive health.69 Under that policy, the country gave money. The State then will be the funder and provider of all forms of family planning
priority to one's right to freely choose the method of family planning to be adopted, in methods and the implementer of the program by ensuring the widespread dissemination of,
conformity with its adherence to the commitments made in the International Conference on and universal access to, a full range of family planning methods, devices and supplies.74
Population and Development.70 Thus, on August 14, 2009, the country enacted R.A. No.
9710 or "The Magna Carta for Women, " which, among others, mandated the State to
provide for comprehensive health services and programs for women, including family ISSUES
planning and sex education.71 After a scrutiny of the various arguments and contentions of the parties, the Court has
synthesized and refined them to the following principal issues:
The RH Law
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the
Despite the foregoing legislative measures, the population of the country kept on galloping controversy.
at an uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the 1] Power of Judicial Review
population of the country reached over 76 million in the year 2000 and over 92 million in 2] Actual Case or Controversy
2010.72 The executive and the legislative, thus, felt that the measures were still not 3] Facial Challenge
adequate. To rein in the problem, the RH Law was enacted to provide Filipinos, especially 4] Locus Standi
the poor and the marginalized, access and information to the full range of modem family 5] Declaratory Relief
planning methods, and to ensure that its objective to provide for the peoples' right to 6] One Subject/One Title Rule
reproductive health be achieved. To make it more effective, the RH Law made it mandatory
for health providers to provide information on the full range of modem family planning II. SUBSTANTIVE: Whether the RH law is unconstitutional:
methods, supplies and services, and for schools to provide reproductive health education. 1] Right to Life
To put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its mandates. 2] Right to Health
3] Freedom of Religion and the Right to Free Speech
Stated differently, the RH Law is an enhancement measure to fortify and make effective the 4] The Family
current laws on contraception, women's health and population control. 5] Freedom of Expression and Academic Freedom
6] Due Process
Prayer of the Petitioners - Maintain the Status Quo 7] Equal Protection
8] Involuntary Servitude
The petitioners are one in praying that the entire RH Law be declared unconstitutional. 9] Delegation of Authority to the FDA
Petitioner ALFI, in particular, argues that the government sponsored contraception program, 10] Autonomy of Local Govemments/ARMM
the very essence of the RH Law, violates the right to health of women and the sanctity of
life, which the State is mandated to protect and promote. Thus, ALFI prays that "the status DISCUSSION
quo ante - the situation prior to the passage of the RH Law - must be maintained."73 It Before delving into the constitutionality of the RH Law and its implementing rules, it
explains: behooves the Court to resolve some procedural impediments.
The instant Petition does not question contraception and contraceptives per se. As
provided under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the
of contraceptives are prohibited unless dispensed by a prescription duly licensed by a controversy.
physician. What the Petitioners find deplorable and repugnant under the RH Law is the role
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should
submit to the legislative and political wisdom of Congress and respect the compromises
made in the crafting of the RH Law, it being "a product of a majoritarian democratic
process"75 and "characterized by an inordinate amount of transparency."76 The OSG posits
that the authority of the Court to review social legislation like the RH Law by certiorari is
"weak," since the Constitution vests the discretion to implement the constitutional policies
and positive norms with the political departments, in particular, with Congress.77 It further
asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-Terrorism
Council,78 the remedies of certiorari and prohibition utilized by the petitioners are improper
to assail the validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering
that the assailed law has yet to be enforced and applied to the petitioners, and that the
government has yet to distribute reproductive health devices that are abortive. It claims
that the RH Law cannot be challenged "on its face" as it is not a speech-regulating
measure.80
In many cases involving the determination of the constitutionality of the actions of the
Executive and the Legislature, it is often sought that the Court temper its exercise of judicial
power and accord due respect to the wisdom of its co-equal branch on the basis of the
principle of separation of powers. To be clear, the separation of powers is a fundamental
principle in our system of government, which obtains not through express provision but by
actual division in our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction and is supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the
Congress of the Philippines;82 (b) the executive power shall be vested in the President of
the Philippines;83 and (c) the judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.84 The Constitution has truly blocked out
with deft strokes and in bold lines, the allotment of powers among the three branches of
government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of
powers which imposes upon the courts proper restraint, born of the nature of their
functions and of their respect for the other branches of government, in striking down the
acts of the Executive or the Legislature as unconstitutional. Verily, the policy is a harmonious
blend of courtesy and caution.86
It has also long been observed, however, that in times of social disquietude or political
instability, the great landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated.87 In order to address this, the Constitution impresses upon the Court
to respect the acts performed by a co-equal branch done within its sphere of competence
and authority, but at the same time, allows it to cross the line of separation - but only at a
very limited and specific point - to determine whether the acts of the executive and the
legislative branches are null because they were undertaken with grave abuse of
discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an attendant unconstitutionality or grave
abuse of discretion results.89 The Court must demonstrate its unflinching commitment to
protect those cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be
limited, the Constitution makes no distinction as to the kind of legislation that may be
subject to judicial scrutiny, be it in the form of social legislation or otherwise. The reason is
simple and goes back to the earlier point. The Court may pass upon the constitutionality of
acts of the legislative and the executive branches, since its duty is not to review their
collective wisdom but, rather, to make sure that they have acted in consonance with their
respective authorities and rights as mandated of them by the Constitution. If after said
review, the Court finds no constitutional violations of any sort, then, it has no more
authority of proscribing the actions under review. This is in line with Article VIII, Section 1 of
the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari,
prohibition and mandamus are appropriate remedies to raise constitutional issues and to
review and/or prohibit/nullify, when proper, acts of legislative and executive officials, as
there is no other plain, speedy or adequate remedy in the ordinary course of law. This ruling
was later on applied in Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed
is judicial rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a "controversy as to the application or
interpretation of constitutional provision is raised before this Court (as in the instant case),
it becomes a legal issue which the Court is bound by constitutional mandate to decide.
[Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial
review is essential for the maintenance and enforcement of the separation of powers and
the balancing of powers among the three great departments of government through the
definition and maintenance of the boundaries of authority and control between them. To
him, judicial review is the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled
authority to rule on just any and every claim of constitutional violation. Jurisprudence is
replete with the rule that the power of judicial review is limited by four exacting requisites,
viz : (a) there must be an actual case or controversy; (b) the petitioners must possess locus
standi; (c) the question of constitutionality must be raised at the earliest opportunity; and
(d) the issue of constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case
or controversy because the RH Law has yet to be implemented.97 They claim that the
questions raised by the petitions are not yet concrete and ripe for adjudication since no one
has been charged with violating any of its provisions and that there is no showing that any
of the petitioners' rights has been adversely affected by its operation.98 In short, it is
contended that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is appropriate or
ripe for determination, not conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion. The rule is that courts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however intellectually challenging. The
controversy must be justiciable-definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a denial thereof, on the other;
that is, it must concern a real, tangible and not merely a theoretical question or issue. There
ought to be an actual and substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts.
Corollary to the requirement of an actual case or controversy is the requirement of ripeness.
A question is ripe for adjudication when the act being challenged has had a direct adverse
effect on the individual challenging it. For a case to be considered ripe for adjudication, it is
a prerequisite that something has then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to himself as a result of the challenged action. He must
show that he has sustained or is immediately in danger of sustaining some direct injury as a
result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the Philippines,103
where the constitutionality of an unimplemented Memorandum of Agreement on the
Ancestral Domain (MOA-AD) was put in question, it was argued that the Court has no
authority to pass upon the issues raised as there was yet no concrete act performed that
could possibly violate the petitioners' and the intervenors' rights. Citing precedents, the
Court ruled that the fact of the law or act in question being not yet effective does not negate
ripeness. Concrete acts under a law are not necessary to render the controversy ripe. Even a
singular violation of the Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the
same is ripe for judicial determination. Considering that the RH Law and its implementing
rules have already taken effect and that budgetary measures to carry out the law have
already been passed, it is evident that the subject petitions present a justiciable controversy.
As stated earlier, when an action of the legislative branch is seriously alleged to have
infringed the Constitution, it not only becomes a right, but also a duty of the Judiciary to
settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical practitioners or
medical providers are in danger of being criminally prosecuted under the RH Law for vague
violations thereof, particularly public health officers who are threatened to be dismissed
from the service with forfeiture of retirement and other benefits. They must, at least, be
heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech
regulating measure.

The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only
protected speech, but also all other rights in the First Amendment.106 These include
religious freedom, freedom of the press, and the right of the people to peaceably assemble,
and to petition the Government for a redress of grievances.107 After all, the fundamental
right to religious freedom, freedom of the press and peaceful assembly are but component
rights of the right to one's freedom of expression, as they are modes which one's thoughts
are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally
maintained, albeit with some modifications. While this Court has withheld the application of
facial challenges to strictly penal statues, it has expanded its scope to cover statutes not
only regulating free speech, but also those involving religious freedom, and other
fundamental rights.109 The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned a
proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed legislation, the Court has authority to
take cognizance of these kindred petitions and to determine if the RH Law can indeed pass
constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist
no actual case or controversy, would diminish this Court as a reactive branch of
government, acting only when the Fundamental Law has been transgressed, to the
detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective petitions.
It contends that the "as applied challenge" lodged by the petitioners cannot prosper as the
assailed law has yet to be enforced and applied against them,111 and the government has
yet to distribute reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine
and their status as citizens and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such
that the party has sustained or will sustain direct injury as a result of the challenged
governmental act. It requires a personal stake in the outcome of the controversy as to
assure the concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions.
In relation to locus standi, the "as applied challenge" embodies the rule that one can
challenge the constitutionality of a statute only if he asserts a violation of his own rights. The
rule prohibits one from challenging the constitutionality of the statute grounded on a
violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of
procedure, hence, can be relaxed for non-traditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society, or of paramount public
interest."
In Coconut Oil Refiners Association, Inc. v. Torres, the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirement
may be relaxed and a suit may be allowed to prosper even where there is no direct injury to
the party claiming the right of judicial review. In the first Emergency Powers Cases, ordinary
citizens and taxpayers were allowed to question the constitutionality of several executive
orders although they had only an indirect and general interest shared in common with the
public.
With these said, even if the constitutionality of the RH Law may not be assailed through an
"as-applied challenge, still, the Court has time and again acted liberally on the locus standi
requirement. It has accorded certain individuals standing to sue, not otherwise directly
injured or with material interest affected by a Government act, provided a constitutional
issue of transcendental importance is invoked. The rule on locus standi is, after all, a
procedural technicality which the Court has, on more than one occasion, waived or relaxed,
thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or
legislators, to sue in the public interest, albeit they may not have been directly injured by
the operation of a law or any other government act. As held in Jaworski v. PAGCOR:

Granting arguendo that the present action cannot be properly treated as a petition for
prohibition, the transcendental importance of the issues involved in this case warrants that
we set aside the technical defects and take primary jurisdiction over the petition at bar. One
cannot deny that the issues raised herein have potentially pervasive influence on the social
and moral well being of this nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate, rather than promote substantial justice,
must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also
to the bench and bar, the issues raised must be resolved for the guidance of all. After all, the
RH Law drastically affects the constitutional provisions on the right to life and health, the
freedom of religion and expression and other constitutional rights. Mindful of all these and
the fact that the issues of contraception and reproductive health have already caused deep
division among a broad spectrum of society, the Court entertains no doubt that the petitions
raise issues of transcendental importance warranting immediate court adjudication. More
importantly, considering that it is the right to life of the mother and the unborn which is
primarily at issue, the Court need not wait for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights
enshrined in the Constitution are being imperilled to be violated. To do so, when the life of
either the mother or her child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.120 Suffice it to state that
most of the petitions are praying for injunctive reliefs and so the Court would just consider
them as petitions for prohibition under Rule 65, over which it has original jurisdiction.
Where the case has far-reaching implications and prays for injunctive reliefs, the Court may
consider them as petitions for prohibition under Rule 65.
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it violates
Section 26(1), Article VI of the Constitution, prescribing the one subject-one title rule.
According to them, being one for reproductive health with responsible parenthood, the
assailed legislation violates the constitutional standards of due process by concealing its true
intent - to act as a population control measure.
To belittle the challenge, the respondents insist that the RH Law is not a birth or population
control measure, and that the concepts of "responsible parenthood" and "reproductive
health" are both interrelated as they are inseparable.
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as
principally a population control measure. The corpus of the RH Law is geared towards the
reduction of the country's population. While it claims to save lives and keep our women and
children healthy, it also promotes pregnancy-preventing products. As stated earlier, the RH
Law emphasizes the need to provide Filipinos, especially the poor and the marginalized,
with access to information on the full range of modem family planning products and
methods. These family planning methods, natural or modem, however, are clearly geared
towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of
births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as
well. A large portion of the law, however, covers the dissemination of information and
provisions on access to medically-safe, non-abortifacient, effective, legal, affordable, and
quality reproductive health care services, methods, devices, and supplies, which are all
intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the RH Law.126
Indeed, remove the provisions that refer to contraception or are related to it and the RH
Law loses its very foundation.127 As earlier explained, "the other positive provisions such as
skilled birth attendance, maternal care including pre-and post-natal services, prevention and
management of reproductive tract infections including HIV/AIDS are already provided for in
the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was
written:
It is well-settled that the "one title-one subject" rule does not require the Congress to
employ in the title of the enactment language of such precision as to mirror, fully index or
catalogue all the contents and the minute details therein. The rule is sufficiently complied
with if the title is comprehensive enough as to include the general object which the statute
seeks to effect, and where, as here, the persons interested are informed of the nature,
scope and consequences of the proposed law and its operation. Moreover, this Court has
invariably adopted a liberal rather than technical construction of the rule "so as not to
cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both
"reproductive health" and "responsible parenthood" are interrelated and germane to the
overriding objective to control the population growth. As expressed in the first paragraph of
Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of these rights, the right to
sustainable human development, the right to health which includes reproductive health, the
right to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural beliefs, and the
demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so
uncertain that the average person reading it would not be informed of the purpose of the
enactment or put on inquiry as to its contents, or which is misleading, either in referring to
or indicating one subject where another or different one is really embraced in the act, or in
omitting any expression or indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible
parenthood" which bears to the attainment of the goal of achieving "sustainable human
development" as stated under its terms, the Court finds no reason to believe that Congress
intentionally sought to deceive the public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the
unborn child under Section 12, Article II of the Constitution. The assailed legislation allowing
access to abortifacients/abortives effectively sanctions abortion.
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of
the RH Law considers contraceptives that prevent the fertilized ovum to reach and be
implanted in the mother's womb as an abortifacient; thus, sanctioning contraceptives that
take effect after fertilization and prior to implantation, contrary to the intent of the Framers
of the Constitution to afford protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and
effective family planning products and supplies, medical research shows that contraceptives
use results in abortion as they operate to kill the fertilized ovum which already has life.
As it opposes the initiation of life, which is a fundamental human good, the petitioners
assert that the State sanction of contraceptive use contravenes natural law and is an affront
to the dignity of man.
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug
Administration (FDA) to certify that the product or supply is not to be used as an
abortifacient, the assailed legislation effectively confirms that abortifacients are not
prohibited. Also considering that the FDA is not the agency that will actually supervise or
administer the use of these products and supplies to prospective patients, there is no way it
can truthfully make a certification that it shall not be used for abortifacient purposes.
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the
Constitution was simply the prohibition of abortion. They contend that the RH Law does not
violate the Constitution since the said law emphasizes that only "non-abortifacient"
reproductive health care services, methods, devices products and supplies shall be made
accessible to the public.
According to the OSG, Congress has made a legislative determination that contraceptives
are not abortifacients by enacting the RH Law. As the RH Law was enacted with due
consideration to various studies and consultations with the World Health Organization
(WHO) and other experts in the medical field, it is asserted that the Court afford deference
and respect to such a determination and pass judgment only when a particular drug or
device is later on determined as an abortive.
For his part, respondent Lagman argues that the constitutional protection of one's right to
life is not violated considering that various studies of the WHO show that life begins from
the implantation of the fertilized ovum. Consequently, he argues that the RH Law is
constitutional since the law specifically provides that only contraceptives that do not
prevent the implantation of the fertilized ovum are allowed.
The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.
Even if not formally established, the right to life, being grounded on natural law, is inherent
and, therefore, not a creation of, or dependent upon a particular law, custom, or belief. It
precedes and transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III
of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the
Philippines is not of recent vintage. From the enactment of R.A. No. 4729, entitled "An Act
To Regulate The Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices
"on June 18, 1966, prescribing rules on contraceptive drugs and devices which prevent
fertilization,138 to the promotion of male vasectomy and tubal ligation,139 and the
ratification of numerous international agreements, the country has long recognized the
need to promote population control through the use of contraceptives in order to achieve
long-term economic development. Through the years, however, the use of contraceptives
and other family planning methods evolved from being a component of demographic
management, to one centered on the promotion of public health, particularly, reproductive
health.140
This has resulted in the enactment of various measures promoting women's rights and
health and the overall promotion of the family's well-being. Thus, aside from R.A. No. 4729,
R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710, otherwise
known as the "The Magna Carta of Women" were legislated. Notwithstanding this paradigm
shift, the Philippine national population program has always been grounded two
cornerstone principles: "principle of no-abortion" and the "principle of non-coercion."141 As
will be discussed later, these principles are not merely grounded on administrative policy,
but rather, originates from the constitutional protection expressly provided to afford
protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life
begins is a scientific and medical issue that should not be decided, at this stage, without
proper hearing and evidence. During the deliberation, however, it was agreed upon that the
individual members of the Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular
phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen
the family as a basic autonomous social institution. It shall equally protect the life of the
mother and the life of the unborn from conception. The natural and primary right and duty
of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception. This is
undisputable because before conception, there is no unborn to speak of. For said reason, it
is no surprise that the Constitution is mute as to any proscription prior to conception or
when life begins. The problem has arisen because, amazingly, there are quarters who have
conveniently disregarded the scientific fact that conception is reckoned from fertilization.
They are waving the view that life begins at implantation. Hence, the issue of when life
begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with
"fertilization" of the female ovum by the male sperm.142 On the other side of the spectrum
are those who assert that conception refers to the "implantation" of the fertilized ovum in
the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be
interpreted in their plain and ordinary meaning. As held in the recent case of Chavez v.
Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the words of a
statute are clear, plain, and free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation. It is a well-settled principle of constitutional
construction that the language employed in the Constitution must be given their ordinary
meaning except where technical terms are employed. As much as possible, the words of the
Constitution should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the framers and the people mean
what they say. Verba legis non est recedendum - from the words of a statute there should
be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the
words in which constitutional provisions are couched express the objective sought to be
attained; and second, because the Constitution is not primarily a lawyer's document but
essentially that of the people, in whose consciousness it should ever be present as an
important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word "conception"
which, as described and defined by all reliable and reputable sources, means that life begins
at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant,
formation of a viable zygote; the fertilization that results in a new entity capable of
developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of
the female ovum by the male spermatozoon resulting in human life capable of survival and
maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano, it was
written:
Life is not synonymous with civil personality. One need not acquire civil personality first
before he/she could die. Even a child inside the womb already has life. No less than the
Constitution recognizes the life of the unborn from conception, that the State must protect
equally with the life of the mother. If the unborn already has life, then the cessation thereof
even prior to the child being delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said
that the State "has respect for human life at all stages in the pregnancy" and "a legitimate
and substantial interest in preserving and promoting fetal life." Invariably, in the decision,
the fetus was referred to, or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers
regarding the term "conception" used in Section 12, Article II of the Constitution. From their
deliberations, it clearly refers to the moment of "fertilization." The records reflect the
following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the
moment of conception."
When is the moment of conception?
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the
sperm that there is human life.
As to why conception is reckoned from fertilization and, as such, the beginning of human
life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that
needs to be answered is: Is the fertilized ovum alive? Biologically categorically says yes, the
fertilized ovum is alive. First of all, like all living organisms, it takes in nutrients which it
processes by itself. It begins doing this upon fertilization. Secondly, as it takes in these
nutrients, it grows from within. Thirdly, it multiplies itself at a geometric rate in the
continuous process of cell division. All these processes are vital signs of life. Therefore, there
is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the
moment of conception, the nuclei of the ovum and the sperm rupture. As this happens 23
chromosomes from the ovum combine with 23 chromosomes of the sperm to form a total
of 46 chromosomes. A chromosome count of 46 is found only - and I repeat, only in human
cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the
fertilized ovum is both alive and human, then, as night follows day, it must be human life. Its
nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the
moment of fertilization" was not because of doubt when human life begins, but rather,
because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here
before with the scientific phrase "fertilized ovum" may be beyond the comprehension of
some people; we want to use the simpler phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under the
Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a
Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the
Commissioner's own admission, he would leave it to Congress to define when life begins. So,
Congress can define life to begin from six months after fertilization; and that would really be
very, very, dangerous. It is now determined by science that life begins from the moment of
conception. There can be no doubt about it. So we should not give any doubt to Congress,
too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that
is one of the questions I was going to raise during the period of interpellations but it has
been expressed already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the
moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg meets
the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether
certain contraceptives that we know today are abortifacient or not because it is a fact that
some of the so-called contraceptives deter the rooting of the ovum in the uterus. If
fertilization has already occurred, the next process is for the fertilized ovum to travel
towards the uterus and to take root. What happens with some contraceptives is that they
stop the opportunity for the fertilized ovum to reach the uterus. Therefore, if we take the
provision as it is proposed, these so called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient
and, therefore, would be unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or
not these certain contraceptives are abortifacient. Scientifically and based on the provision
as it is now proposed, they are already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution
emphasized that the State shall provide equal protection to both the mother and the
unborn child from the earliest opportunity of life, that is, upon fertilization or upon the
union of the male sperm and the female ovum. It is also apparent is that the Framers of the
Constitution intended that to prohibit Congress from enacting measures that would allow it
determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas,
spearheading the need to have a constitutional provision on the right to life, recognized that
the determination of whether a contraceptive device is an abortifacient is a question of fact
which should be left to the courts to decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be
deemed an abortive and thus prohibited. Conversely, contraceptives that actually prevent
the union of the male sperm and the female ovum, and those that similarly take action prior
to fertilization should be deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point
that I would like not only to protect the life of the unborn, but also the lives of the millions
of people in the world by fighting for a nuclear-free world. I would just like to be assured of
the legal and pragmatic implications of the term "protection of the life of the unborn from
the moment of conception." I raised some of these implications this afternoon when I
interjected in the interpellation of Commissioner Regalado. I would like to ask that question
again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of
conception" we are also actually saying "no," not "maybe," to certain contraceptives which
are already being encouraged at this point in time. Is that the sense of the committee or
does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is
no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives,
such as the intra-uterine device which actually stops the egg which has already been
fertilized from taking route to the uterus. So if we say "from the moment of conception,"
what really occurs is that some of these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted
by petitioners during the oral arguments. There it was conceded that tubal ligation,
vasectomy, even condoms are not classified as abortifacients.157
Atty. Noche: Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin: There is no life.
Atty. Noche: So, there is no life to be protected.
Justice Bersamin: To be protected.
Atty. Noche: Under Section 12, yes.
Justice Bersamin: So you have no objection to condoms?
Atty. Noche: Not under Section 12, Article II.
Justice Bersamin: Even if there is already information that condoms sometimes have
porosity?
Atty. Noche: Well, yes, Your Honor, there are scientific findings to that effect, Your Honor,
but I am discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin: Alright.
Atty. Noche: And it's not, I have to admit it's not an abortifacient, Your Honor.
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical,
Nursing, and Allied Health Dictionary defines conception as "the beginning of pregnancy
usually taken to be the instant a spermatozoon enters an ovum and forms a viable
zygote."159
It describes fertilization as "the union of male and female gametes to form a zygote from
which the embryo develops."
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical
schools in the Philippines, also concludes that human life (human person) begins at the
moment of fertilization with the union of the egg and the sperm resulting in the formation
of a new individual, with a unique genetic composition that dictates all developmental
stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human development
begins after the union of male and female gametes or germ cells during a process known as
fertilization (conception). Fertilization is a sequence of events that begins with the contact
of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of
their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large diploid
cell that is the beginning, or primordium, of a human being."162
The authors of Human Embryology & Teratology163 mirror the same position. They wrote:
"Although life is a continuous process, fertilization is a critical landmark because, under
ordinary circumstances, a new, genetically distinct human organism is thereby formed....
The combination of 23 chromosomes present in each pronucleus results in 46 chromosomes
in the zygote. Thus the diploid number is restored and the embryonic genome is formed.
The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the
Reproductive Health Bill (Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA
maintains its strong position that fertilization is sacred because it is at this stage that
conception, and thus human life, begins. Human lives are sacred from the moment of
conception, and that destroying those new lives is never licit, no matter what the purported
good outcome would be. In terms of biology and human embryology, a human being begins
immediately at fertilization and after that, there is no point along the continuous line of
human embryogenesis where only a "potential" human being can be posited. Any
philosophical, legal, or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that
the life of a new human being commences at a scientifically well defined "moment of
conception." This conclusion is objective, consistent with the factual evidence, and
independent of any specific ethical, moral, political, or religious view of human life or of
human embryos.164
Conclusion: The Moment of Conception is Reckoned from Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and
more importantly, following the intention of the Framers of the Constitution, the undeniable
conclusion is that a zygote is a human organism and that the life of a new human being
commences at a scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman
that life begins at implantation.165 According to him, "fertilization and conception are two
distinct and successive stages in the reproductive process. They are not identical and
synonymous."166 Citing a letter of the WHO, he wrote that "medical authorities confirm
that the implantation of the fertilized ovum is the commencement of conception and it is
only after implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific
mooring. It does not pertain to the beginning of life but to the viability of the fetus. The
fertilized ovum/zygote is not an inanimate object - it is a living human being complete with
DNA and 46 chromosomes.168 Implantation has been conceptualized only for convenience
by those who had population control in mind. To adopt it would constitute textual infidelity
not only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug
or device that would prevent the implantation of the fetus at the uterine wall. It would be
provocative and further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the
life of the unborn from conception was to prevent the Legislature from enacting a measure
legalizing abortion. It was so clear that even the Court cannot interpret it otherwise. This
intent of the Framers was captured in the record of the proceedings of the 1986
Constitutional Commission. Commissioner Bernardo Villegas, the principal proponent of the
protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by
Congress or any pro-abortion decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and actually proscribes
abortion. While the Court has opted not to make any determination, at this stage, when life
begins, it finds that the RH Law itself clearly mandates that protection be afforded from the
moment of fertilization. As pointed out by Justice Carpio, the RH Law is replete with
provisions that embody the policy of the law to protect to the fertilized ovum and that it
should be afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised
Penal Code, which penalizes the destruction or expulsion of the fertilized ovum. Thus:
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
defined as follows:
(q) Reproductive health care refers to the access to a full range of methods, facilities,
services and supplies that contribute to reproductive health and well-being by addressing
reproductive health-related problems. It also includes sexual health, the purpose of which is
the enhancement of life and personal relations. The elements of reproductive health care
include the following:
Proscription of abortion and management of abortion complications;
Section 4. (s) Reproductive health rights refers to the rights of individuals and couples, to
decide freely and responsibly whether or not to have children; the number, spacing and
timing of their children; to make other decisions concerning reproduction, free of
discrimination, coercion and violence; to have the information and means to do so; and to
attain the highest standard of sexual health and reproductive health: Provided, however,
That reproductive health rights do not include abortion, and access to abortifacients.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential
decree or issuance, executive order, letter of instruction, administrative order, rule or
regulation contrary to or is inconsistent with the provisions of this Act including Republic Act
No. 7392, otherwise known as the Midwifery Act, is hereby repealed, modified or amended
accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To
be clear, Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms -
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be
implanted in the mother's womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment
of fertilization. By using the word " or," the RH Law prohibits not only drugs or devices that
prevent implantation, but also those that induce abortion and those that induce the
destruction of a fetus inside the mother's womb. Thus, an abortifacient is any drug or device
that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law,
consistent with the Constitution, recognizes that the fertilized ovum already has life and that
the State has a bounden duty to protect it. The conclusion becomes clear because the RH
Law, first, prohibits any drug or device that induces abortion (first kind), which, as discussed
exhaustively above, refers to that which induces the killing or the destruction of the
fertilized ovum, and, second, prohibits any drug or device the fertilized ovum to reach and
be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and
be implanted in the mother's womb is an abortifacient (third kind), the RH Law does not
intend to mean at all that life only begins only at implantation, as Hon. Lagman suggests. It
also does not declare either that protection will only be given upon implantation, as the
petitioners likewise suggest. Rather, it recognizes that: one, there is a need to protect the
fertilized ovum which already has life, and two, the fertilized ovum must be protected the
moment it becomes existent - all the way until it reaches and implants in the mother's
womb. After all, if life is only recognized and afforded protection from the moment the
fertilized ovum implants - there is nothing to prevent any drug or device from killing or
destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized
ovum, the RH Law does not sanction abortion. To repeat, it is the Court's position that life
begins at fertilization, not at implantation. When a fertilized ovum is implanted in the
uterine wall , its viability is sustained but that instance of implantation is not the point of
beginning of life. It started earlier. And as defined by the RH Law, any drug or device that
induces abortion, that is, which kills or destroys the fertilized ovum or prevents the fertilized
ovum to reach and be implanted in the mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any
product or supply included or to be included in the EDL must have a certification from the
FDA that said product and supply is made available on the condition that it is not to be used
as an abortifacient" as empty as it is absurd. The FDA, with all its expertise, cannot fully
attest that a drug or device will not all be used as an abortifacient, since the agency cannot
be present in every instance when the contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the proviso of Section 9, as worded, should
bend to the legislative intent and mean that "any product or supply included or to be
included in the EDL must have a certification from the FDA that said product and supply is
made available on the condition that it cannot be used as abortifacient." Such a construction
is consistent with the proviso under the second paragraph of the same section that
provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means
emergency contraceptive pills, postcoital pills, abortifacients that will be used for such
purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused
their office when they redefined the meaning of abortifacient. The RH Law defines
"abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be
implanted in the mother's womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum to
reach and be implanted in the mother's womb upon determination of the Food and Drug
Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family
planning method, device, or health product, whether natural or artificial, that prevents
pregnancy but does not primarily destroy a fertilized ovum or prevent a fertilized ovum from
being implanted in the mother's womb in doses of its approved indication as determined by
the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as
"abortifacient" only those that primarily induce abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As
they pointed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the
RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is
indeed ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be
declared invalid. There is danger that the insertion of the qualifier "primarily" will pave the
way for the approval of contraceptives which may harm or destroy the life of the unborn
from conception/fertilization in violation of Article II, Section 12 of the Constitution. With
such qualification in the RH-IRR, it appears to insinuate that a contraceptive will only be
considered as an "abortifacient" if its sole known effect is abortion or, as pertinent here, the
prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of
contraceptives which are actually abortifacients because of their fail-safe mechanism.
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these
contraceptives cannot act as abortive. With this, together with the definition of an
abortifacient under Section 4 (a) of the RH Law and its declared policy against abortion, the
undeniable conclusion is that contraceptives to be included in the PNDFS and the EDL will
not only be those contraceptives that do not have the primary action of causing abortion or
the destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum
to reach and be implanted in the mother's womb, but also those that do not have the
secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the
principle that laws should be construed in a manner that its constitutionality is sustained,
the RH Law and its implementing rules must be consistent with each other in prohibiting
abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the RH-IRR should be
declared void. To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit
only those contraceptives that have the primary effect of being an abortive would effectively
"open the floodgates to the approval of contraceptives which may harm or destroy the life
of the unborn from conception/fertilization in violation of Article II, Section 12 of the
Constitution."
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the
constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the
inclusion of hormonal contraceptives, intrauterine devices, injectables and family products
and supplies in the National Drug Formulary and the inclusion of the same in the regular
purchase of essential medicines and supplies of all national hospitals.176 Citing various
studies on the matter, the petitioners posit that the risk of developing breast and cervical
cancer is greatly increased in women who use oral contraceptives as compared to women
who never use them. They point out that the risk is decreased when the use of
contraceptives is discontinued. Further, it is contended that the use of combined oral
contraceptive pills is associated with a threefold increased risk of venous thromboembolism,
a twofold increased risk of ischematic stroke, and an indeterminate effect on risk of
myocardial infarction.177 Given the definition of "reproductive health" and "sexual health"
under Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed
legislation only seeks to ensure that women have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-
executory, it being a mere statement of the administration's principle and policy. Even if it
were self-executory, the OSG posits that medical authorities refute the claim that
contraceptive pose a danger to the health of women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this regard, the
Constitution is replete with provisions protecting and promoting the right to health. Section
15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and instill
health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the
health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social services
available to all the people at affordable cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory
system and undertake appropriate health, manpower development, and research,
responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their
rehabilitation, self-development, and self-reliance, and their integration into the
mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard
or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless
the provisions clearly express the contrary, the provisions of the Constitution should be
considered self-executory. There is no need for legislation to implement these self-executing
provisions.182 In Manila Prince Hotel v. GSIS, it was stated:
Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are
self-executing. If the constitutional provisions are treated as requiring legislation instead of
self-executing, the legislature would have the power to ignore and practically nullify the
mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is,
as it has always been, that –
... in case of doubt, the Constitution should be considered self-executing rather than non-
self-executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution
should be considered self-executing, as a contrary rule would give the legislature discretion
to determine when, or whether, they shall be effective. These provisions would be
subordinated to the will of the lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed implementing statute. (Emphases
supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not
question contraception and contraceptives per se.184 In fact, ALFI prays that the status quo
- under R.A. No. 5921 and R.A. No. 4729, the sale and distribution of contraceptives are not
prohibited when they are dispensed by a prescription of a duly licensed by a physician - be
maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact the
provisions of R.A. No. 4729. There is no intention at all to do away with it. It is still a good
law and its requirements are still in to be complied with. Thus, the Court agrees with the
observation of respondent Lagman that the effectivity of the RH Law will not lead to the
unmitigated proliferation of contraceptives since the sale, distribution and dispensation of
contraceptive drugs and devices will still require the prescription of a licensed physician.
With R.A. No. 4729 in place, there exists adequate safeguards to ensure the public that only
contraceptives that are safe are made available to the public. As aptly explained by
respondent Lagman:
D. Contraceptives cannot be dispensed and used without prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be
dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or
Distribution of Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act
Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical Education in
the Philippines and for Other Purposes" are not repealed by the RH Law and the provisions
of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and
devices are particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense
or otherwise distribute whether for or without consideration, any contraceptive drug or
device, unless such sale, dispensation or distribution is by a duly licensed drug store or
pharmaceutical company and with the prescription of a qualified medical practitioner.
"Sec. 2. For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used
exclusively for the purpose of preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the
female reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be
punished with a fine of not more than five hundred pesos or an imprisonment of not less
than six months or more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,
pharmaceutical, or drug of whatever nature and kind or device shall be compounded,
dispensed, sold or resold, or otherwise be made available to the consuming public except
through a prescription drugstore or hospital pharmacy, duly established in accordance with
the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant
statutes, the pretension of the petitioners that the RH Law will lead to the unmitigated
proliferation of contraceptives, whether harmful or not, is completely unwarranted and
baseless.186 [Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which
provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of family planning supplies for the whole country.
The DOH shall coordinate with all appropriate local government bodies to plan and
implement this procurement and distribution program. The supply and budget allotments
shall be based on, among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their
children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring
program consistent with the overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the
provisions of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it
will procure shall be from a duly licensed drug store or pharmaceutical company and that
the actual dispensation of these contraceptive drugs and devices will done following a
prescription of a qualified medical practitioner. The distribution of contraceptive drugs and
devices must not be indiscriminately done. The public health must be protected by all
possible means. As pointed out by Justice De Castro, a heavy responsibility and burden are
assumed by the government in supplying contraceptive drugs and devices, for it may be
held accountable for any injury, illness or loss of life resulting from or incidental to their
use.187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to
the FDA pursuant to the RH Law. It behooves the Court to await its determination which
drugs or devices are declared by the FDA as safe, it being the agency tasked to ensure that
food and medicines available to the public are safe for public consumption. Consequently,
the Court finds that, at this point, the attack on the RH Law on this ground is premature.
Indeed, the various kinds of contraceptives must first be measured up to the constitutional
yardstick as expounded herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and non-abortifacient. The first sentence
of Section 9 that ordains their inclusion by the National Drug Formulary in the EDL by using
the mandatory "shall" is to be construed as operative only after they have been tested,
evaluated, and approved by the FDA. The FDA, not Congress, has the expertise to determine
whether a particular hormonal contraceptive or intrauterine device is safe and non-
abortifacient. The provision of the third sentence concerning the requirements for the
inclusion or removal of a particular family planning supply from the EDL supports this
construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal
contraceptives, intra-uterine devices, injectables, and other safe, legal, non-abortifacient
and effective family planning products and supplies by the National Drug Formulary in the
EDL is not mandatory. There must first be a determination by the FDA that they are in fact
safe, legal, non-abortifacient and effective family planning products and supplies. There can
be no predetermination by Congress that the gamut of contraceptives are "safe, legal, non-
abortifacient and effective" without the proper scientific examination.
3 -Freedom of Religion and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by
the constitutional proscription, there are those who, because of their religious education
and background, sincerely believe that contraceptives, whether abortifacient or not, are
evil. Some of these are medical practitioners who essentially claim that their beliefs prohibit
not only the use of contraceptives but also the willing participation and cooperation in all
things dealing with contraceptive use. Petitioner PAX explained that "contraception is
gravely opposed to marital chastity, it is contrary to the good of the transmission of life, and
to the reciprocal self-giving of the spouses; it harms true love and denies the sovereign rule
of God in the transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives, arguing that
the expenditure of their taxes on contraceptives violates the guarantee of religious freedom
since contraceptives contravene their religious beliefs.189
2. On Religious Accommodation and The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious
sentiments by making provisions for a conscientious objector, the constitutional guarantee
is nonetheless violated because the law also imposes upon the conscientious objector the
duty to refer the patient seeking reproductive health services to another medical
practitioner who would be able to provide for the patient's needs. For the petitioners, this
amounts to requiring the conscientious objector to cooperate with the very thing he refuses
to do without violating his/her religious beliefs.
They further argue that even if the conscientious objector's duty to refer is recognized, the
recognition is unduly limited, because although it allows a conscientious objector in Section
23 (a)(3) the option to refer a patient seeking reproductive health services and information -
no escape is afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against a
patient seeking reproductive health procedures. They claim that the right of other
individuals to conscientiously object, such as: a) those working in public health facilities
referred to in Section 7; b) public officers involved in the implementation of the law referred
to in Section 23(b ); and c) teachers in public schools referred to in Section 14 of the RH Law,
are also not recognize.
Petitioner Echavez and the other medical practitioners meanwhile, contend that the
requirement to refer the matter to another health care service provider is still considered a
compulsion on those objecting healthcare service providers. They add that compelling them
to do the act against their will violates the Doctrine of Benevolent Neutrality. Sections 9, 14
and 1 7 of the law are too secular that they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive effects, mandatory sex education,
mandatory pro-bono reproductive health services to indigents encroach upon the religious
freedom of those upon whom they are required.
Petitioner CFC also argues that the requirement for a conscientious objector to refer the
person seeking reproductive health care services to another provider infringes on one's
freedom of religion as it forces the objector to become an unwilling participant in the
commission of a serious sin under Catholic teachings. While the right to act on one's belief
may be regulated by the State, the acts prohibited by the RH Law are passive acts which
produce neither harm nor injury to the public.
Petitioner CFC adds that the RH Law does not show compelling state interest to justify
regulation of religious freedom because it mentions no emergency, risk or threat that
endangers state interests. It does not explain how the rights of the people (to equality, non-
discrimination of rights, sustainable human development, health, education, information,
choice and to make decisions according to religious convictions, ethics, cultural beliefs and
the demands of responsible parenthood) are being threatened or are not being met as to
justify the impairment of religious freedom.
Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to
attend family planning and responsible parenthood seminars and to obtain a certificate of
compliance. They claim that the provision forces individuals to participate in the
implementation of the RH Law even if it contravenes their religious beliefs.195 As the
assailed law dangles the threat of penalty of fine and/or imprisonment in case of non-
compliance with its provisions, the petitioners claim that the RH Law forcing them to
provide, support and facilitate access and information to contraception against their beliefs
must be struck down as it runs afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a
specific mode or type of contraceptives be used, be it natural or artificial. It neither imposes
nor sanctions any religion or belief.196 They point out that the RH Law only seeks to serve
the public interest by providing accessible, effective and quality reproductive health services
to ensure maternal and child health, in line with the State's duty to bring to reality the social
justice health guarantees of the Constitution,197 and that what the law only prohibits are
those acts or practices, which deprive others of their right to reproductive health.198 They
assert that the assailed law only seeks to guarantee informed choice, which is an assurance
that no one will be compelled to violate his religion against his free will.199
The respondents add that by asserting that only natural family planning should be allowed,
the petitioners are effectively going against the constitutional right to religious freedom, the
same right they invoked to assail the constitutionality of the RH Law.200 In other words, by
seeking the declaration that the RH Law is unconstitutional, the petitioners are asking that
the Court recognize only the Catholic Church's sanctioned natural family planning methods
and impose this on the entire citizenry.
With respect to the duty to refer, the respondents insist that the same does not violate the
constitutional guarantee of religious freedom, it being a carefully balanced compromise
between the interests of the religious objector, on one hand, who is allowed to keep silent
but is required to refer -and that of the citizen who needs access to information and who
has the right to expect that the health care professional in front of her will act
professionally. For the respondents, the concession given by the State under Section 7 and
23(a)(3) is sufficient accommodation to the right to freely exercise one's religion without
unnecessarily infringing on the rights of others.
Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to
refer is limited in duration, location and impact.
Regarding mandatory family planning seminars under Section 15, the respondents claim
that it is a reasonable regulation providing an opportunity for would-be couples to have
access to information regarding parenthood, family planning, breastfeeding and infant
nutrition. It is argued that those who object to any information received on account of their
attendance in the required seminars are not compelled to accept information given to them.
They are completely free to reject any information they do not agree with and retain the
freedom to decide on matters of family life without intervention of the State.
For their part, respondents De Venecia et al., dispute the notion that natural family planning
is the only method acceptable to Catholics and the Catholic hierarchy. Citing various studies
and surveys on the matter, they highlight the changing stand of the Catholic Church on
contraception throughout the years and note the general acceptance of the benefits of
contraceptives by its followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up
of people of diverse ethnic, cultural and religious beliefs and backgrounds. History has
shown us that our government, in law and in practice, has allowed these various religious,
cultural, social and racial groups to thrive in a single society together. It has embraced
minority groups and is tolerant towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people generally believe in a deity, whatever
they conceived Him to be, and to whom they call for guidance and enlightenment in crafting
our fundamental law. Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just
and humane society, and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop our patrimony, and secure to
ourselves and our posterity, the blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality
innate in our nature and consciousness as a people, shaped by tradition and historical
experience. As this is embodied in the preamble, it means that the State recognizes with
respect the influence of religion in so far as it instills into the mind the purest principles of
morality.205 Moreover, in recognition of the contributions of religion to society, the 1935,
1973 and 1987 constitutions contain benevolent and accommodating provisions towards
religions such as tax exemption of church property, salary of religious officers in government
institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not
encroach into the affairs of the church, and vice-versa. The principle of separation of Church
and State was, thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual respect. Generally,
the State cannot meddle in the internal affairs of the church, much less question its faith
and dogmas or dictate upon it. It cannot favor one religion and discriminate against another.
On the other hand, the church cannot impose its beliefs and convictions on the State and
the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if it
sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred over
another, the Constitution in the above-cited provision utilizes the term "church" in its
generic sense, which refers to a temple, a mosque, an iglesia, or any other house of God
which metaphorically symbolizes a religious organization. Thus, the "Church" means the
religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to
protect the State from the pursuit of its secular objectives, the Constitution lays down the
following mandate in Article III, Section 5 and Article VI, Section 29 (2), of the 1987
Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.
Section 29.
No public money or property shall be appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, other religious teacher,
or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to
the armed forces, or to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the
Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or
favoring any religion as against other religions. It mandates a strict neutrality in affairs
among religious groups."206 Essentially, it prohibits the establishment of a state religion
and the use of public resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of
the human conscience.207 Under this part of religious freedom guarantee, the State is
prohibited from unduly interfering with the outside manifestations of one's belief and
faith.208 Explaining the concept of religious freedom, the Court, in Victoriano v. Elizalde
Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of any religious
tenets or the modes of worship of any sect, thus forestalling compulsion by law of the
acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88
L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of religion within
limits of utmost amplitude. It has been said that the religion clauses of the Constitution are
all designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to
live, consistent with the liberty of others and with the common good. Any legislation whose
effect or purpose is to impede the observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the burden may be characterized
as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But
if the state regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can accomplish its purpose without
imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144;
McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory
purposes. They have a single goal-to promote freedom of individual religious beliefs and
practices. In simplest terms, the free exercise clause prohibits government from inhibiting
religious beliefs with penalties for religious beliefs and practice, while the establishment
clause prohibits government from inhibiting religious belief with rewards for religious beliefs
and practices. In other words, the two religion clauses were intended to deny government
the power to use either the carrot or the stick to influence individual religious beliefs and
practices.
Corollary to the guarantee of free exercise of one's religion is the principle that the
guarantee of religious freedom is comprised of two parts: the freedom to believe, and the
freedom to act on one's belief. The first part is absolute. As explained in Gerona v. Secretary
of Education:
The realm of belief and creed is infinite and limitless bounded only by one's imagination and
thought. So is the freedom of belief, including religious belief, limitless and without bounds.
One may believe in most anything, however strange, bizarre and unreasonable the same
may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel.212
The second part however, is limited and subject to the awesome power of the State and can
be enjoyed only with proper regard to the rights of others. It is "subject to regulation where
the belief is translated into external acts that affect the public welfare."
Legislative Acts and the Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to
the doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada
v. Escritor, (Escritor) where it was stated "that benevolent neutrality-accommodation,
whether mandatory or permissive, is the spirit, intent and framework underlying the
Philippine Constitution." In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form
of religion, but to allow individuals and groups to exercise their religion without hindrance.
"The purpose of accommodation is to remove a burden on, or facilitate the exercise of, a
person's or institution's religion."216 "What is sought under the theory of accommodation is
not a declaration of unconstitutionality of a facially neutral law, but an exemption from its
application or its 'burdensome effect,' whether by the legislature or the courts."
In ascertaining the limits of the exercise of religious freedom, the compelling state interest
test is proper.218 Underlying the compelling state interest test is the notion that free
exercise is a fundamental right and that laws burdening it should be subject to strict
scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with
the first case on the Free Exercise Clause, American Bible Society, the Court mentioned the
"clear and present danger" test but did not employ it. Nevertheless, this test continued to
be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the
test of permissibility of religious freedom is whether it violates the established institutions
of society and law. The Victoriano case mentioned the "immediate and grave danger" test as
well as the doctrine that a law of general applicability may burden religious exercise
provided the law is the least restrictive means to accomplish the goal of the law. The case
also used, albeit inappropriately, the "compelling state interest" test. After Victoriano ,
German went back to the Gerona rule. Ebralinag then employed the "grave and immediate
danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went
back to the " clear and present danger" test in the maiden case of A merican Bible Society.
Not surprisingly, all the cases which employed the "clear and present danger" or "grave and
immediate danger" test involved, in one form or another, religious speech as this test is
often used in cases on freedom of expression. On the other hand, the Gerona and German
cases set the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the "grave and immediate danger" test . Victoriano
was the only case that employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia
ni Cristo where the "clear and present danger" and "grave and immediate danger" tests
were appropriate as speech has easily discernible or immediate effects. The Gerona and
German doctrine, aside from having been overruled, is not congruent with the benevolent
neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The "compelling state
interest" test is proper where conduct is involved for the whole gamut of human conduct
has different effects on the state's interests: some effects may be immediate and short-term
while others delayed and far-reaching. A test that would protect the interests of the state in
preventing a substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of
rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This
right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty
God in order to build a just and humane society and establish a government." As held in
Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a colorable
state interest is therefore not appropriate. Instead, only a compelling interest of the state
can prevail over the fundamental right to religious liberty. The test requires the state to
carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are destroyed. In determining which
shall prevail between the state's interest and religious liberty, reasonableness shall be the
guide. The "compelling state interest" serves the purpose of revering religious liberty while
at the same time affording protection to the paramount interests of the state. This was the
test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end,
the "compelling state interest" test, by upholding the paramount interests of the state,
seeks to protect the very state, without which, religious liberty will not be preserved.
[Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine whether the use
of contraceptives or one's participation in the support of modem reproductive health
measures is moral from a religious standpoint or whether the same is right or wrong
according to one's dogma or belief. For the Court has declared that matters dealing with
"faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church ...
are unquestionably ecclesiastical matters which are outside the province of the civil
courts."220 The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bench should be understood only
in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have
authority to determine whether the RH Law contravenes the guarantee of religious
freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious
beliefs and convictions. It is replete with assurances the no one can be compelled to violate
the tenets of his religion or defy his religious convictions against his free will. Provisions in
the RH Law respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right
to equality and nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right to education
and information, and the right to choose and make decisions for themselves in accordance
with their religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the
family which in turn is the foundation of the nation. Pursuant thereto, the State shall
defend:
(a) The right of spouses to found a family in accordance with their religious convictions and
the demands of responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods
of family planning, including effective natural and modern methods which have been proven
medically safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards such as those registered and approved by the
FDA for the poor and marginalized as identified through the NHTS-PR and other government
measures of identifying marginalization: Provided, That the State shall also provide funding
support to promote modern natural methods of family planning, especially the Billings
Ovulation Method, consistent with the needs of acceptors and their religious convictions.
[Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the
number of children they desire with due consideration to the health, particularly of women,
and the resources available and affordable to them and in accordance with existing laws,
public morals and their religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods
that are in accordance with their religious convictions and cultural beliefs, taking into
consideration the State's obligations under various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's
organizations, civil society, faith-based organizations, the religious sector and communities
is crucial to ensure that reproductive health and population and development policies,
plans, and programs will address the priority needs of women, the poor, and the
marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs
and aspirations of the family and children. It is likewise a shared responsibility between
parents to determine and achieve the desired number of children, spacing and timing of
their children according to their own family life aspirations, taking into account
psychological preparedness, health status, sociocultural and economic concerns consistent
with their religious convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of
contraceptives. To some medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the principle of benevolent neutrality, their
beliefs should be respected.
The Establishment Clause and Contraceptives
In the same breath that the establishment clause restricts what the government can do with
religion, it also limits what religious sects can or cannot do with the government. They can
neither cause the government to adopt their particular doctrines as policy for everyone, nor
can they not cause the government to restrict other groups. To do so, in simple terms,
would cause the State to adhere to a particular religion and, thus, establishing a state
religion.
Consequently, the petitioners are misguided in their supposition that the State cannot
enhance its population control program through the RH Law simply because the promotion
of contraceptive use is contrary to their religious beliefs. Indeed, the State is not precluded
to pursue its legitimate secular objectives without being dictated upon by the policies of any
one religion. One cannot refuse to pay his taxes simply because it will cloud his conscience.
The demarcation line between Church and State demands that one render unto Caesar the
things that are Caesar's and unto God the things that are God's.
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly
respects diverse religious beliefs in line with the Non-Establishment Clause, the same
conclusion cannot be reached with respect to Sections 7, 23 and 24 thereof. The said
provisions commonly mandate that a hospital or a medical practitioner to immediately refer
a person seeking health care and services under the law to another accessible healthcare
provider despite their conscientious objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government
legislation or practice, the compelling state interest test in line with the Court's espousal of
the Doctrine of Benevolent Neutrality in Escritor, finds application. In this case, the
conscientious objector's claim to religious freedom would warrant an exemption from
obligations under the RH Law, unless the government succeeds in demonstrating a more
compelling state interest in the accomplishment of an important secular objective.
Necessarily so, the plea of conscientious objectors for exemption from the RH Law deserves
no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious
freedom has been burdened. As in Escritor, there is no doubt that an intense tug-of-war
plagues a conscientious objector. One side coaxes him into obedience to the law and the
abandonment of his religious beliefs, while the other entices him to a clean conscience yet
under the pain of penalty. The scenario is an illustration of the predicament of medical
practitioners whose religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the
religious belief and conviction of a conscientious objector. Once the medical practitioner,
against his will, refers a patient seeking information on modem reproductive health
products, services, procedures and methods, his conscience is immediately burdened as he
has been compelled to perform an act against his beliefs. As Commissioner Joaquin A.
Bernas (Commissioner Bernas) has written, "at the basis of the free exercise clause is the
respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however, a false
compromise because it makes pro-life health providers complicit in the performance of an
act that they find morally repugnant or offensive. They cannot, in conscience, do indirectly
what they cannot do directly. One may not be the principal, but he is equally guilty if he
abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to
free speech, it being an externalization of one's thought and conscience. This in turn
includes the right to be silent. With the constitutional guarantee of religious freedom
follows the protection that should be afforded to individuals in communicating their beliefs
to others as well as the protection for simply being silent. The Bill of Rights guarantees the
liberty of the individual to utter what is in his mind and the liberty not to utter what is not in
his mind.223 While the RH Law seeks to provide freedom of choice through informed
consent, freedom of choice guarantees the liberty of the religious conscience and prohibits
any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs and moral convictions of individuals, on one
hand, and the interest of the State, on the other, to provide access and information on
reproductive health products, services, procedures and methods to enable the people to
determine the timing, number and spacing of the birth of their children, the Court is of the
strong view that the religious freedom of health providers, whether public or private, should
be accorded primacy. Accordingly, a conscientious objector should be exempt from
compliance with the mandates of the RH Law. If he would be compelled to act contrary to
his religious belief and conviction, it would be violative of "the principle of non-coercion"
enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the
case of Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the
midwives claiming to be conscientious objectors under the provisions of Scotland's Abortion
Act of 1967, could not be required to delegate, supervise or support staff on their labor
ward who were involved in abortions.226 The Inner House stated "that if 'participation'
were defined according to whether the person was taking part 'directly' or ' indirectly' this
would actually mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle was the same -
they could not be forced to assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned
and operated by a religious group and health care service providers. Considering that
Section 24 of the RH Law penalizes such institutions should they fail or refuse to comply with
their duty to refer under Section 7 and Section 23(a)(3), the Court deems that it must be
struck down for being violative of the freedom of religion. The same applies to Section 23(a)
(l) and (a)(2) in relation to Section 24, considering that in the dissemination of information
regarding programs and services and in the performance of reproductive health procedures,
the religious freedom of health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive
Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law.
And this Court has consistently affirmed this preferred status, well aware that it is "designed
to protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common good."
The Court is not oblivious to the view that penalties provided by law endeavour to ensure
compliance. Without set consequences for either an active violation or mere inaction, a law
tends to be toothless and ineffectual. Nonetheless, when what is bartered for an effective
implementation of a law is a constitutionally-protected right the Court firmly chooses to
stamp its disapproval. The punishment of a healthcare service provider, who fails and/or
refuses to refer a patient to another, or who declines to perform reproductive health
procedure on a patient because incompatible religious beliefs, is a clear inhibition of a
constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers,
chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their
office are specifically charged with the duty to implement the provisions of the RPRH Act
and these Rules, cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious
objection clause should be equally protective of the religious belief of public health officers.
There is no perceptible distinction why they should not be considered exempt from the
mandates of the law. The protection accorded to other conscientious objectors should
equally apply to all medical practitioners without distinction whether they belong to the
public or private sector. After all, the freedom to believe is intrinsic in every individual and
the protective robe that guarantees its free exercise is not taken off even if one acquires
employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the
hierarchy of human values. The mind must be free to think what it wills, whether in the
secular or religious sphere, to give expression to its beliefs by oral discourse or through the
media and, thus, seek other candid views in occasions or gatherings or in more permanent
aggrupation. Embraced in such concept then are freedom of religion, freedom of speech, of
the press, assembly and petition, and freedom of association.
The discriminatory provision is void not only because no such exception is stated in the RH
Law itself but also because it is violative of the equal protection clause in the Constitution.
Quoting respondent Lagman, if there is any conflict between the RH-IRR and the RH Law, the
law must prevail.
Justice Mendoza: I'll go to another point. The RH law .. .in your Comment- in-Intervention on
page 52, you mentioned RH Law is replete with provisions in upholding the freedom of
religion and respecting religious convictions. Earlier, you affirmed this with qualifications.
Now, you have read, I presumed you have read the IRR-Implementing Rules and Regulations
of the RH Bill?
Congressman Lagman: Yes, Your Honor, I have read but I have to admit, it's a long IRR and I
have not thoroughly dissected the nuances of the provisions.
Justice Mendoza: I will read to you one provision. It's Section 5.24. This I cannot find in the
RH Law. But in the IRR it says: " .... skilled health professionals such as provincial, city or
municipal health officers, chief of hospitals, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be considered as conscientious
objectors." Do you agree with this?
Congressman Lagman: I will have to go over again the provisions, Your Honor.
Justice Mendoza: In other words, public health officers in contrast to the private
practitioners who can be conscientious objectors, skilled health professionals cannot be
considered conscientious objectors. Do you agree with this? Is this not against the
constitutional right to the religious belief?
Congressman Lagman: Your Honor, if there is any conflict between the IRR and the law, the
law must prevail.
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense
of the subject provisions, were able to: 1] demonstrate a more compelling state interest to
restrain conscientious objectors in their choice of services to render; and 2] discharge the
burden of proof that the obligatory character of the law is the least intrusive means to
achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The
OSG was curiously silent in the establishment of a more compelling state interest that would
rationalize the curbing of a conscientious objector's right not to adhere to an action contrary
to his religious convictions. During the oral arguments, the OSG maintained the same silence
and evasion. The Transcripts of the Stenographic Notes disclose the following:
Justice De Castro: Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay: Yes, Justice.
Justice De Castro: ... which you are discussing awhile ago with Justice Abad. What is the
compelling State interest in imposing this duty to refer to a conscientious objector which
refuses to do so because of his religious belief?
Senior State Solicitor Hilbay: Ahh, Your Honor, ..
Justice De Castro: What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay: In the first place, Your Honor, I don't believe that the standard
is a compelling State interest, this is an ordinary health legislation involving professionals.
This is not a free speech matter or a pure free exercise matter. This is a regulation by the
State of the relationship between medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free exercise
clause of the conscientious objectors, however few in number. Only the prevention of an
immediate and grave danger to the security and welfare of the community can justify the
infringement of religious freedom. If the government fails to show the seriousness and
immediacy of the threat, State intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the
freedom to act or not to act according to what one believes. And this freedom is violated
when one is compelled to act against one's belief or is prevented from acting according to
one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an
individual in the perceived scenario of the subject provisions. After all, a couple who plans
the timing, number and spacing of the birth of their children refers to a future event that is
contingent on whether or not the mother decides to adopt or use the information, product,
method or supply given to her or whether she even decides to become pregnant at all. On
the other hand, the burden placed upon those who object to contraceptive use is immediate
and occurs the moment a patient seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the
conscientious objector's religious freedom, the respondents have failed to demonstrate "the
gravest abuses, endangering paramount interests" which could limit or override a person's
fundamental right to religious freedom. Also, the respondents have not presented any
government effort exerted to show that the means it takes to achieve its legitimate state
objective is the least intrusive means.234 Other than the assertion that the act of referring
would only be momentary, considering that the act of referral by a conscientious objector is
the very action being contested as violative of religious freedom, it behooves the
respondents to demonstrate that no other means can be undertaken by the State to achieve
its objective without violating the rights of the conscientious objector. The health concerns
of women may still be addressed by other practitioners who may perform reproductive
health-related procedures with open willingness and motivation. Suffice it to say, a person
who is forced to perform an act in utter reluctance deserves the protection of the Court as
the last vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that the
right to health is protected. Considering other legislations as they stand now, R.A . No. 4 729
or the Contraceptive Act, R.A. No. 6365 or "The Population Act of the Philippines" and R.A.
No. 9710, otherwise known as "The Magna Carta of Women," amply cater to the needs of
women in relation to health services and programs. The pertinent provision of Magna Carta
on comprehensive health services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall,
at all times, provide for a comprehensive, culture-sensitive, and gender-responsive health
services and programs covering all stages of a woman's life cycle and which addresses the
major causes of women's mortality and morbidity: Provided, That in the provision for
comprehensive health services, due respect shall be accorded to women's religious
convictions, the rights of the spouses to found a family in accordance with their religious
convictions, and the demands of responsible parenthood, and the right of women to
protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and infant
health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services without
prejudice to the primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually
transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical
cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims and
survivors shall be provided with comprehensive health services that include psychosocial,
therapeutic, medical, and legal interventions and assistance towards healing, recovery, and
empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical
norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women and
girls. In addition, healthy lifestyle activities are encouraged and promoted through programs
and projects as strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all
sectors with appropriate, timely, complete, and accurate information and education on all
the above-stated aspects of women's health in government education and training
programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth and the
development of moral character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling
state interest was "Fifteen maternal deaths per day, hundreds of thousands of unintended
pregnancies, lives changed, x x x."235 He, however, failed to substantiate this point by
concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the
Filipino maternal mortality rate dropped to 48 percent from 1990 to 2008, 236 although
there was still no RH Law at that time. Despite such revelation, the proponents still insist
that such number of maternal deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare
programs for Filipino women, they could not be solved by a measure that puts an
unwarrantable stranglehold on religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law.
While generally healthcare service providers cannot be forced to render reproductive health
care procedures if doing it would contravene their religious beliefs, an exception must be
made in life-threatening cases that require the performance of emergency procedures. In
these situations, the right to life of the mother should be given preference, considering that
a referral by a medical practitioner would amount to a denial of service, resulting to
unnecessarily placing the life of a mother in grave danger. Thus, during the oral arguments,
Atty. Liban, representing CFC, manifested: "the forced referral clause that we are objecting
on grounds of violation of freedom of religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the doctor is
morally obliged always to try to save both lives. If, however, it is impossible, the resulting
death to one should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the
House of Representatives of the principle of double-effect wherein intentional harm on the
life of either the mother of the child is never justified to bring about a "good" effect. In a
conflict situation between the life of the child and the life of the mother, the doctor is
morally obliged always to try to save both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to save both, provided that no direct
harm is intended to the other. If the above principles are observed, the loss of the child's life
or the mother's life is not intentional and, therefore, unavoidable. Hence, the doctor would
not be guilty of abortion or murder. The mother is never pitted against the child because
both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of
the child may be resorted to even if is against the religious sentiments of the medical
practitioner. As quoted above, whatever burden imposed upon a medical practitioner in this
case would have been more than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the issuance of a
marriage license, the Court finds the same to be a reasonable exercise of police power by
the government. A cursory reading of the assailed provision bares that the religious freedom
of the petitioners is not at all violated. All the law requires is for would-be spouses to attend
a seminar on parenthood, family planning breastfeeding and infant nutrition. It does not
even mandate the type of family planning methods to be included in the seminar, whether
they be natural or artificial. As correctly noted by the OSG, those who receive any
information during their attendance in the required seminars are not compelled to accept
the information given to them, are completely free to reject the information they find
unacceptable, and retain the freedom to decide on matters of family life without the
intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions
of the Constitution by intruding into marital privacy and autonomy. It argues that it
cultivates disunity and fosters animosity in the family rather than promote its solidarity and
total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic
social institution. In fact, one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and
shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains
provisions which tend to wreck the family as a solid social institution. It bars the husband
and/or the father from participating in the decision making process regarding their common
future progeny. It likewise deprives the parents of their authority over their minor daughter
simply because she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the
decision of the one undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and
vasectomy which, by their very nature, should require mutual consent and decision
between the husband and the wife as they affect issues intimately related to the founding of
a family. Section 3, Art. XV of the Constitution espouses that the State shall defend the
"right of the spouses to found a family." One person cannot found a family. The right,
therefore, is shared by both spouses. In the same Section 3, their right "to participate in the
planning and implementation of policies and programs that affect them " is equally
recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving
absolute authority to the spouse who would undergo a procedure, and barring the other
spouse from participating in the decision would drive a wedge between the husband and
wife, possibly result in bitter animosity, and endanger the marriage and the family, all for
the sake of reducing the population. This would be a marked departure from the policy of
the State to protect marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter which
belongs to the couple, not just one of them. Any decision they would reach would affect
their future as a family because the size of the family or the number of their children
significantly matters. The decision whether or not to undergo the procedure belongs
exclusively to, and shared by, both spouses as one cohesive unit as they chart their own
destiny. It is a constitutionally guaranteed private right. Unless it prejudices the State, which
has not shown any compelling interest, the State should see to it that they chart their
destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise
known as the "Magna Carta for Women," provides that women shall have equal rights in all
matters relating to marriage and family relations, including the joint decision on the number
and spacing of their children. Indeed, responsible parenthood, as Section 3(v) of the RH Law
states, is a shared responsibility between parents. Section 23(a)(2)(i) of the RH Law should
not be allowed to betray the constitutional mandate to protect and strengthen the family by
giving to only one spouse the absolute authority to decide whether to undergo reproductive
health procedure.242
The right to chart their own destiny together falls within the protected zone of marital
privacy and such state intervention would encroach into the zones of spousal privacy
guaranteed by the Constitution. In our jurisdiction, the right to privacy was first recognized
in Marje v. Mutuc,243 where the Court, speaking through Chief Justice Fernando, held that
"the right to privacy as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection."244 Marje adopted the
ruling of the US Supreme Court in Griswold v. Connecticut,245 where Justice William O.
Douglas wrote:

We deal with a right of privacy older than the Bill of Rights -older than our political parties,
older than our school system. Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty,
not commercial or social projects. Yet it is an association for as noble a purpose as any
involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives
a criminal offense on the ground of its amounting to an unconstitutional invasion of the
right to privacy of married persons. Nevertheless, it recognized the zone of privacy rightfully
enjoyed by couples. Justice Douglas in Grisworld wrote that "specific guarantees in the Bill
of Rights have penumbras, formed by emanations from those guarantees that help give
them life and substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will
be undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of the RH
law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services, whether
natural or artificial: Provided, That minors will not be allowed access to modern methods of
family planning without written consent from their parents or guardian/s except when the
minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a
parent or has had a miscarriage, the parents are excluded from the decision making process
of the minor with regard to family planning. Even if she is not yet emancipated, the parental
authority is already cut off just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and
guidance of her own parents. The State cannot replace her natural mother and father when
it comes to providing her needs and comfort. To say that their consent is no longer relevant
is clearly anti-family. It does not promote unity in the family. It is an affront to the
constitutional mandate to protect and strengthen the family as an inviolable social
institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural
and primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government."247 In this
regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It
imports the assertion that the right of parents is superior to that of the State.248 [Emphases
supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over
their minor-child or the right of the spouses to mutually decide on matters which very well
affect the very purpose of marriage, that is, the establishment of conjugal and family life,
would result in the violation of one's privacy with respect to his family. It would be
dismissive of the unique and strongly-held Filipino tradition of maintaining close family ties
and violative of the recognition that the State affords couples entering into the special
contract of marriage to as one unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the
care and custody of a minor child, whether or not the latter is already a parent or has had a
miscarriage. Only a compelling state interest can justify a state substitution of their parental
authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second
paragraph of Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a
distinction must be made. There must be a differentiation between access to information
about family planning services, on one hand, and access to the reproductive health
procedures and modern family planning methods themselves, on the other. Insofar as
access to information is concerned, the Court finds no constitutional objection to the
acquisition of information by the minor referred to under the exception in the second
paragraph of Section 7 that would enable her to take proper care of her own body and that
of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information
to enable a person to make informed decisions is essential in the protection and
maintenance of ones' health, access to such information with respect to reproductive health
must be allowed. In this situation, the fear that parents might be deprived of their parental
control is unfounded because they are not prohibited to exercise parental guidance and
control over their minor child and assist her in deciding whether to accept or reject the
information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening
cases that require the performance of emergency procedures. In such cases, the life of the
minor who has already suffered a miscarriage and that of the spouse should not be put at
grave risk simply for lack of consent. It should be emphasized that no person should be
denied the appropriate medical care urgently needed to preserve the primordial right, that
is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By
effectively limiting the requirement of parental consent to "only in elective surgical
procedures," it denies the parents their right of parental authority in cases where what is
involved are "non-surgical procedures." Save for the two exceptions discussed above, and in
the case of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the
parents should not be deprived of their constitutional right of parental authority. To deny
them of this right would be an affront to the constitutional mandate to protect and
strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the
teaching of Age-and Development-Appropriate Reproductive Health Education under threat
of fine and/or imprisonment violates the principle of academic freedom . According to the
petitioners, these provisions effectively force educational institutions to teach reproductive
health education even if they believe that the same is not suitable to be taught to their
students.250 Citing various studies conducted in the United States and statistical data
gathered in the country, the petitioners aver that the prevalence of contraceptives has led
to an increase of out-of-wedlock births; divorce and breakdown of families; the acceptance
of abortion and euthanasia; the "feminization of poverty"; the aging of society; and
promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is
premature because the Department of Education, Culture and Sports has yet to formulate a
curriculum on age-appropriate reproductive health education. One can only speculate on
the content, manner and medium of instruction that will be used to educate the adolescents
and whether they will contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this particular issue, the Court
declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and
development of moral character shall receive the support of the Government. Like the 1973
Constitution and the 1935 Constitution, the 1987 Constitution affirms the State recognition
of the invaluable role of parents in preparing the youth to become productive members of
society. Notably, it places more importance on the role of parents in the development of
their children by recognizing that said role shall be "primary," that is, that the right of
parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in the moral
development of the youth. Indeed, the Constitution makes mention of the importance of
developing the youth and their important role in nation building.253 Considering that
Section 14 provides not only for the age-appropriate-reproductive health education, but
also for values formation; the development of knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and children and other forms of
gender based violence and teen pregnancy; physical, social and emotional changes in
adolescents; women's rights and children's rights; responsible teenage behavior; gender and
development; and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR
and Section 4(t) of the RH Law itself provides for the teaching of responsible teenage
behavior, gender sensitivity and physical and emotional changes among adolescents - the
Court finds that the legal mandate provided under the assailed provision supplements,
rather than supplants, the rights and duties of the parents in the moral development of their
children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health
education program shall be developed in conjunction with parent-teacher-community
associations, school officials and other interest groups, it could very well be said that it will
be in line with the religious beliefs of the petitioners. By imposing such a condition, it
becomes apparent that the petitioners' contention that Section 14 violates Article XV,
Section 3(1) of the Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection to their
participation in the reproductive health education program provided under Section 14 of the
RH Law on the ground that the same violates their religious beliefs, the Court reserves its
judgment should an actual case be filed before it.
6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates the due
process clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private
health service provider" among those who may be held punishable but does not define who
is a "private health care service provider." They argue that confusion further results since
Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals
operated by religious groups from rendering reproductive health service and modern family
planning methods. It is unclear, however, if these institutions are also exempt from giving
reproductive health information under Section 23(a)(l), or from rendering reproductive
health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of
incorrect information, but at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess its meaning and differ as
to its application. It is repugnant to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.255 Moreover, in
determining whether the words used in a statute are vague, words must not only be taken
in accordance with their plain meaning alone, but also in relation to other parts of the
statute. It is a rule that every part of the statute must be interpreted with reference to the
context, that is, every part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care service
provider," reference must be made to Section 4(n) of the RH Law which defines a "public
health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is
duly licensed and accredited and devoted primarily to the maintenance and operation of
facilities for health promotion, disease prevention, diagnosis, treatment and care of
individuals suffering from illness, disease, injury, disability or deformity, or in need of
obstetrical or other medical and nursing care; (2) public health care professional, who is a
doctor of medicine, a nurse or a midvvife; (3) public health worker engaged in the delivery
of health care services; or (4) barangay health worker who has undergone training programs
under any accredited government and NGO and who voluntarily renders primarily health
care services in the community after having been accredited to function as such by the local
health board in accordance with the guidelines promulgated by the Department of Health
(DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law, instead
of "private health care service provider," should not be a cause of confusion for the obvious
reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being
obligated to render reproductive health service and modem family planning methods,
includes exemption from being obligated to give reproductive health information and to
render reproductive health procedures. Clearly, subject to the qualifications and exemptions
earlier discussed, the right to be exempt from being obligated to render reproductive health
service and modem family planning methods, necessarily includes exemption from being
obligated to give reproductive health information and to render reproductive health
procedures. The terms "service" and "methods" are broad enough to include the providing
of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care
service providers who intentionally withhold, restrict and provide incorrect information
regarding reproductive health programs and services. For ready reference, the assailed
provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or
intentionally provide incorrect information regarding programs and services on reproductive
health including the right to informed choice and access to a full range of legal, medically-
safe, non-abortifacient and effective family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or
model or with established rules; inaccurate, faulty; failing to agree with the requirements of
duty, morality or propriety; and failing to coincide with the truth. 257 On the other hand,
the word "knowingly" means with awareness or deliberateness that is intentional.258 Used
together in relation to Section 23(a)(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and effect of programs and services on
reproductive health. Public health and safety demand that health care service providers give
their honest and correct medical information in accordance with what is acceptable in
medical practice. While health care service providers are not barred from expressing their
own personal opinions regarding the programs and services on reproductive health, their
right must be tempered with the need to provide public health and safety. The public
deserves no less.
7-Equal Protection
The petitioners also claim that the RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary target
of the government program that promotes contraceptive use. They argue that, rather than
promoting reproductive health among the poor, the RH Law introduces contraceptives that
would effectively reduce the number of the poor. Their bases are the various provisions in
the RH Law dealing with the poor, especially those mentioned in the guiding principles259
and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the mandatory
reproductive health education program imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the
concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the equality of
right which is embodied in Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in general may be challenged on
the basis of the due process clause. But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal
protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or
things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed." It "requires public bodies and inst itutions to treat similarly
situated individuals in a similar manner." "The purpose of the equal protection clause is to
secure every person within a state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper
execution through the state's duly constituted authorities." "In other words, the concept of
equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate
governmental objective."
The equal protection clause is aimed at all official state actions, not just those of the
legislature. Its inhibitions cover all the departments of the government including the
political and executive departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things
without distinction. What it simply requires is equality among equals as determined
according to a valid classification. Indeed, the equal protection clause permits classification.
Such classification, however, to be valid must pass the test of reasonableness. The test has
four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the
purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally
to all members of the same class. "Superficial differences do not make for a valid
classification."
For a classification to meet the requirements of constitutionality, it must include or embrace
all persons who naturally belong to the class. "The classification will be regarded as invalid if
all the members of the class are not similarly treated, both as to rights conferred and
obligations imposed. It is not necessary that the classification be made with absolute
symmetry, in the sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as long as this is
achieved, all those covered by the classification are to be treated equally. The mere fact that
an individual belonging to a class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-application of the law
to him."
The classification must not be based on existing circumstances only, or so constituted as to
preclude addition to the number included in the class. It must be of such a nature as to
embrace all those who may thereafter be in similar circumstances and conditions. It must
not leave out or "underinclude" those that should otherwise fall into a certain classification.
[Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health
care program is not a violation of the equal protection clause. In fact, it is pursuant to
Section 11, Article XIII of the Constitution which recognizes the distinct necessity to address
the needs of the underprivileged by providing that they be given priority in addressing the
health development of the people. Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social services
available to all the people at affordable cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples
who are suffering from fertility issues and desire to have children. There is, therefore, no
merit to the contention that the RH Law only seeks to target the poor to reduce their
number. While the RH Law admits the use of contraceptives, it does not, as elucidated
above, sanction abortion. As Section 3(1) explains, the "promotion and/or stabilization of
the population growth rate is incidental to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and
does not impose conditions upon couples who intend to have children. While the petitioners
surmise that the assailed law seeks to charge couples with the duty to have children only if
they would raise them in a truly humane way, a deeper look into its provisions shows that
what the law seeks to do is to simply provide priority to the poor in the implementation of
government programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory
reproductive health education program under Section 14, suffice it to state that the mere
fact that the children of those who are less fortunate attend public educational institutions
does not amount to substantial distinction sufficient to annul the assailed provision. On the
other hand, substantial distinction rests between public educational institutions and private
educational institutions, particularly because there is a need to recognize the academic
freedom of private educational institutions especially with respect to religious instruction
and to consider their sensitivity towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the
constitutional prohibition against involuntary servitude. They posit that Section 17 of the
assailed legislation requiring private and non-government health care service providers to
render forty-eight (48) hours of pro bono reproductive health services, actually amounts to
involuntary servitude because it requires medical practitioners to perform acts against their
will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17 can
hardly be considered as forced labor analogous to slavery, as reproductive health care
service providers have the discretion as to the manner and time of giving pro bono services.
Moreover, the OSG points out that the imposition is within the powers of the government,
the accreditation of medical practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public
interest that it is both a power and a duty of the State to control and regulate it in order to
protect and promote the public welfare. Like the legal profession, the practice of medicine is
not a right but a privileged burdened with conditions as it directly involves the very lives of
the people. A fortiori, this power includes the power of Congress263 to prescribe the
qualifications for the practice of professions or trades which affect the public welfare, the
public health, the public morals, and the public safety; and to regulate or control such
professions or trades, even to the point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the
presence of force, threats, intimidation or other similar means of coercion and
compulsion.265 A reading of the assailed provision, however, reveals that it only encourages
private and non- government reproductive healthcare service providers to render pro bono
service. Other than non-accreditation with PhilHealth, no penalty is imposed should they
choose to do otherwise. Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of health service they wish to provide,
when, where and how to provide it or whether to provide it all. Clearly, therefore, no
compulsion, force or threat is made upon them to render pro bono service against their will.
While the rendering of such service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an unreasonable burden, but rather,
a necessary incentive imposed by Congress in the furtherance of a perceived legitimate
state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized
that conscientious objectors are exempt from this provision as long as their religious beliefs
and convictions do not allow them to render reproductive health service, pro bona or
otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to
determine whether or not a supply or product is to be included in the Essential Drugs List
(EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the power
but also the competency to evaluate, register and cover health services and methods. It is
the only government entity empowered to render such services and highly proficient to do
so. It should be understood that health services and methods fall under the gamut of terms
that are associated with what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called
the Food and Drug Administration (FDA) in the Department of Health (DOH). Said
Administration shall be under the Office of the Secretary and shall have the following
functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations
issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this
Act;
"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill of
container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the
issuance of appropriate authorization and spot-check for compliance with regulations
regarding operation of manufacturers, importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health products, as determined by the
FDA;
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,
retailers, consumers, and non-consumer users of health products to report to the FDA any
incident that reasonably indicates that said product has caused or contributed to the death,
serious illness or serious injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health
products, whether or not registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30) days and may be extended for
sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product
found to have caused death, serious illness or serious injury to a consumer or patient, or is
found to be imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which is a requirement for the issuance
of the appropriate authorization;
As can be gleaned from the above, the functions, powers and duties of the FDA are specific
to enable the agency to carry out the mandates of the law. Being the country's premiere
and sole agency that ensures the safety of food and medicines available to the public, the
FDA was equipped with the necessary powers and functions to make it effective. Pursuant
to the principle of necessary implication, the mandate by Congress to the FDA to ensure
public health and safety by permitting only food and medicines that are safe includes
"service" and "methods." From the declared policy of the RH Law, it is clear that Congress
intended that the public be given only those medicines that are proven medically safe, legal,
non-abortifacient, and effective in accordance with scientific and evidence-based medical
research standards. The philosophy behind the permitted delegation was explained in
Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the growing
inability of the legislature to cope directly with the many problems demanding its attention.
The growth of society has ramified its activities and created peculiar and sophisticated
problems that the legislature cannot be expected reasonably to comprehend. Specialization
even in legislation has become necessary. To many of the problems attendant upon present
day undertakings, the legislature may not have the competence, let alone the interest and
the time, to provide the required direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region of Muslim Mindanao
(ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes
upon the powers devolved to local government units (LGUs) under Section 17 of the Local
Government Code. Said Section 17 vested upon the LGUs the duties and functions
pertaining to the delivery of basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the
powers and discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices devolved to
them pursuant to this Code. Local government units shall likewise exercise such other
powers and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic services and
facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies on
the aspect of providing for basic services and facilities in their respective jurisdictions,
paragraph (c) of the same provision provides a categorical exception of cases involving
nationally-funded projects, facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure
projects and other facilities, programs and services funded by the National Government
under the annual General Appropriations Act, other special laws, pertinent executive orders,
and those wholly or partially funded from foreign sources, are not covered under this
Section, except in those cases where the local government unit concerned is duly
designated as the implementing agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the national government is that, unless
an LGU is particularly designated as the implementing agency, it has no power over a
program for which funding has been provided by the national government under the annual
general appropriations act, even if the program involves the delivery of basic services within
the jurisdiction of the LGU.269 A complete relinquishment of central government powers on
the matter of providing basic facilities and services cannot be implied as the Local
Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the
establishment of health care facilities,271 the hiring of skilled health professionals,272 or
the training of barangay health workers,273 it will be the national government that will
provide for the funding of its implementation. Local autonomy is not absolute. The national
government still has the say when it comes to national priority programs which the local
government is called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to
provide these services. There is nothing in the wording of the law which can be construed as
making the availability of these services mandatory for the LGUs. For said reason, it cannot
be said that the RH Law amounts to an undue encroachment by the national government
upon the autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be
equally applied to the ARMM. The RH Law does not infringe upon its autonomy. Moreover,
Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, alluded to
by petitioner Tillah to justify the exemption of the operation of the RH Law in the
autonomous region, refer to the policy statements for the guidance of the regional
government. These provisions relied upon by the petitioners simply delineate the powers
that may be exercised by the regional government, which can, in no manner, be
characterized as an abdication by the State of its power to enact legislation that would
benefit the general welfare. After all, despite the veritable autonomy granted the ARMM,
the Constitution and the supporting jurisprudence, as they now stand, reject the notion of
imperium et imperio in the relationship between the national and the regional
governments.274 Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and plenary power to
legislate on all subjects which extends to all matters of general concern or common
interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to say that
the Court does not duly recognize it as a legal basis for upholding or invalidating a law. Our
only guidepost is the Constitution. While every law enacted by man emanated from what is
perceived as natural law, the Court is not obliged to see if a statute, executive issuance or
ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and notions on inherent rights espoused
by theorists, philosophers and theologists. The jurists of the philosophical school are
interested in the law as an abstraction, rather than in the actual law of the past or
present.277 Unless, a natural right has been transformed into a written law, it cannot serve
as a basis to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the
petitioners, it was explained that the Court is not duty-bound to examine every law or action
and whether it conforms with both the Constitution and natural law. Rather, natural law is
to be used sparingly only in the most peculiar of circumstances involving rights inherent to
man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It
does not allow abortion in any shape or form. It only seeks to enhance the population
control program of the government by providing information and making non-abortifacient
contraceptives more readily available to the public, especially to the poor.
Facts and Fallacies and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to
provide access to medically-safe, non-abortifacient, effective, legal, affordable, and quality
reproductive healthcare services, methods, devices, and supplies. As earlier pointed out,
however, the religious freedom of some sectors of society cannot be trampled upon in
pursuit of what the law hopes to achieve. After all, the Constitutional safeguard to religious
freedom is a recognition that man stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group
cannot be allowed to impose its beliefs on the rest of the society. Philippine modem society
leaves enough room for diversity and pluralism. As such, everyone should be tolerant and
open-minded so that peace and harmony may continue to reign as we exist alongside each
other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that
what it seeks to address is the problem of rising poverty and unemployment in the country.
Let it be said that the cause of these perennial issues is not the large population but the
unequal distribution of wealth. Even if population growth is controlled, poverty will remain
as long as the country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The
European and Asian countries, which embarked on such a program generations ago , are
now burdened with ageing populations. The number of their young workers is dwindling
with adverse effects on their economy. These young workers represent a significant human
capital which could have helped them invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but they are still struggling. For one,
Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas
Filipino Workers. This is because we have an ample supply of young able-bodied workers.
What would happen if the country would be weighed down by an ageing population and the
fewer younger generation would not be able to support them? This would be the situation
when our total fertility rate would go down below the replacement level of two (2) children
per woman.280
Indeed, at the present, the country has a population problem, but the State should not use
coercive measures (like the penal provisions of the RH Law against conscientious objectors)
to solve it. Nonetheless, the policy of the Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say
what the law is as enacted by the lawmaking body. That is not the same as saying what the
law should be or what is the correct rule in a given set of circumstances. It is not the
province of the judiciary to look into the wisdom of the law nor to question the policies
adopted by the legislative branch. Nor is it the business of this Tribunal to remedy every
unjust situation that may arise from the application of a particular law. It is for the
legislature to enact remedial legislation if that would be necessary in the premises. But as
always, with apt judicial caution and cold neutrality, the Court must carry out the delicate
function of interpreting the law, guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly,
must confine itself to the judicial task of saying what the law is, as enacted by the lawmaking
body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws, but with
coercive measures. Even if the Court decrees the RH Law as entirely unconstitutional, there
will still be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No. 4729) and the
reproductive health for women or The Magna Carta of Women (R.A. No. 9710), sans the
coercive provisions of the assailed legislation. All the same, the principle of "no-abortion"
and "non-coercion" in the adoption of any family planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A.
No. 10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions
which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a)
require private health facilities and non-maternity specialty hospitals and hospitals owned
and operated by a religious group to refer patients, not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to another health facility which is
conveniently accessible; and b) allow minor-parents or minors who have suffered a
miscarriage access to modem methods of family planning without written consent from
their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly
Section 5 .24 thereof, insofar as they punish any healthcare service provider who fails and or
refuses to disseminate information regarding programs and services on reproductive health
regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they
allow a married individual, not in an emergency or life-threatening case, as defined under
Republic Act No. 8344, to undergo reproductive health procedures without the consent of
the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they
limit the requirement of parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly
Section 5.24 thereof, insofar as they punish any healthcare service provider who fails and/or
refuses to refer a patient not in an emergency or life-threatening case, as defined under
Republic Act No. 8344, to another health care service provider within the same facility or
one which is conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section
5 .24 thereof, insofar as they punish any public officer who refuses to support reproductive
health programs or shall do any act that hinders the full implementation of a reproductive
health program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the
rendering of pro bona reproductive health service in so far as they affect the conscientious
objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
"primarily" in defining abortifacients and contraceptives, as they are ultra vires and,
therefore, null and void for contravening Section 4(a) of the RH Law and violating Section 12,
Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order,
dated July 16, 2013, is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have
been herein declared as constitutional.
SO ORDERED.
CASE 5: G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF.
HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS,
ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO,
SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO,
VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAÑETE, VANN ALLEN DELA CRUZ, RENE
DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE
FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS,
ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA
SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA,
and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS,
HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY,
and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT
MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS, Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the country’s archipelagic
baselines and classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the
maritime baselines of the Philippines as an archipelagic State. This law followed the framing
of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),
codifying, among others, the sovereign right of States parties over their "territorial sea," the
breadth of which, however, was left undetermined. Attempts to fill this void during the
second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for legislation
passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and
reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under
scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms
of the United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines
ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio,
length, and contour of baselines of archipelagic States like the Philippines7 and sets the
deadline for the filing of application for the extended continental shelf.8 Complying with
these requirements, RA 9522 shortened one baseline, optimized the location of some
basepoints around the Philippine archipelago and classified adjacent territories, namely, the
Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose
islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as
"citizens, taxpayers or x x x legislators," as the case may be, assail the constitutionality of RA
9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory,
and logically, the reach of the Philippine state’s sovereign power, in violation of Article 1 of
the 1987 Constitution, embodying the terms of the Treaty of Paris and ancillary treaties, and
(2) RA 9522 opens the country’s waters landward of the baselines to maritime passage by all
vessels and aircrafts, undermining Philippine sovereignty and national security, contravening
the country’s nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.
In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands"
not only results in the loss of a large maritime area but also prejudices the livelihood of
subsistence fishermen. To buttress their argument of territorial diminution, petitioners
facially attack RA 9522 for what it excluded and included – its failure to reference either the
Treaty of Paris or Sabah and its use of UNCLOS III’s framework of regime of islands to
determine the maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the
petition’s compliance with the case or controversy requirement for judicial review grounded
on petitioners’ alleged lack of locus standi and (2) the propriety of the writs of certiorari and
prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended
RA 9522 as the country’s compliance with the terms of UNCLOS III, preserving Philippine
territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not
undermine the country’s security, environment and economic interests or relinquish the
Philippines’ claim over Sabah.
Respondents also question the normative force, under international law, of petitioners’
assertion that what Spain ceded to the United States under the Treaty of Paris were the
islands and all the waters found within the boundaries of the rectangular area drawn under
the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily –
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring
this suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test
the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522
unconstitutional.
On the Threshold Issues Petitioners Possess Locus Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers
because the petition alleges neither infringement of legislative prerogative nor misuse of
public funds, occasioned by the passage and implementation of RA 9522. Nonetheless, we
recognize petitioners’ locus standi as citizens with constitutionally sufficient interest in the
resolution of the merits of the case which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is
understandably difficult to find other litigants possessing "a more direct and specific
interest" to bring the suit, thus satisfying one of the requirements for granting citizenship
standing.
The Writs of Certiorari and Prohibition Are Proper Remedies to Test the Constitutionality of
Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and prohibition, noting that the writs
cannot issue absent any showing of grave abuse of discretion in the exercise of judicial,
quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on
the part of petitioners.
Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises
its constitutional power of judicial review, however, we have, by tradition, viewed the writs
of certiorari and prohibition as proper remedial vehicles to test the constitutionality of
statutes,19 and indeed, of acts of other branches of government.20 Issues of constitutional
import are sometimes crafted out of statutes which, while having no bearing on the
personal interests of the petitioners, carry such relevance in the life of this nation that the
Court inevitably finds itself constrained to take cognizance of the case and pass upon the
issues raised, non-compliance with the letter of procedural rules notwithstanding. The
statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21
because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty
of Paris and related treaties, successively encoded in the definition of national territory
under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional
definition trumps any treaty or statutory provision denying the Philippines sovereign control
over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that
Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris’
technical description, Philippine sovereignty over territorial waters extends hundreds of
nautical miles around the Philippine archipelago, embracing the rectangular area delineated
in the Treaty of Paris.
Petitioners’ theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral
treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial
waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the
baselines], exclusive economic zone [200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-
long negotiations among United Nations members to codify norms regulating the conduct of
States in the world’s oceans and submarine areas, recognizing coastal and archipelagic
States’ graduated authority over a limited span of waters and submarine lands along their
coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties
to mark-out specific basepoints along their coasts from which baselines are drawn, either
straight or contoured, to serve as geographic starting points to measure the breadth of the
maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like
ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf. – The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf shall be measured
from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to
delimit with precision the extent of their maritime zones and continental shelves. In turn,
this gives notice to the rest of the international community of the scope of the maritime
space and submarine areas within which States parties exercise treaty-based rights, namely,
the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce
customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the
right to exploit the living and non-living resources in the exclusive economic zone (Article
56) and continental shelf (Article 77).
Even under petitioners’ theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the
Philippines would still have to be drawn in accordance with RA 9522 because this is the only
way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn
from the boundaries or other portions of the rectangular area delineated in the Treaty of
Paris, but from the "outermost islands and drying reefs of the archipelago."
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology,
States acquire (or conversely, lose) territory through occupation, accretion, cession and
prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or
enacting statutes to comply with the treaty’s terms to delimit maritime zones and
continental shelves. Territorial claims to land features are outside UNCLOS III, and are
instead governed by the rules on general international law.26
RA 9522’s Use of the Framework of Regime of Islands to Determine the Maritime Zones of
the KIG and the Scarborough Shoal, not Inconsistent with the Philippines’ Claim of
Sovereignty Over these Areas
Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to
draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG,
"weakens our territorial claim" over that area.27 Petitioners add that the KIG’s (and
Scarborough Shoal’s) exclusion from the Philippine archipelagic baselines results in the loss
of "about 15,000 square nautical miles of territorial waters," prejudicing the livelihood of
subsistence fishermen.28 A comparison of the configuration of the baselines drawn under
RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled
with a reading of the text of RA 9522 and its congressional deliberations, vis-à-vis the
Philippines’ obligations under UNCLOS III, belie this view.1avvphi1
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522
merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that
RA 9522 skipped to optimize the location of basepoints and adjust the length of one
baseline (and thus comply with UNCLOS III’s limitation on the maximum length of baselines).
Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes
the wind out of petitioners’ argument branding RA 9522 as a statutory renunciation of the
Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.
Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters"
under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by
optimizing the location of basepoints, increased the Philippines’ total maritime space
(covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square
nautical miles, as shown in the table below:
Extent of maritime area using RA 3046, as amended, taking into account the Treaty of Paris’
delimitation (in square nautical miles)
Extent of maritime area using RA 9522, taking into account UNCLOS III (in square nautical
miles)
Extent of maritime area using RA 3046, as
Extent of maritime area using RA Although
  amended, taking into account the Treaty of
account UNCLOS III (in square nautical miles) Shoal for several decades, these outlying areas are located at an appreciable
Paris’ delimitation (in square nautical miles)
Internal or
archipelagic waters 166,858 171,435
Territorial Sea 274,136 32,106
Exclusive Economic
Zone   382,669
TOTAL 440,994 586,210
Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA
9522 even extends way beyond the waters covered by the rectangular demarcation under
the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of
opposite or adjacent States, there will have to be a delineation of maritime boundaries in
accordance with UNCLOS III.
Further, petitioners’ argument that the KIG now lies outside Philippine territory because the
baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2
of the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction
over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic
of the Philippines consistent with Article 121 of the United Nations Convention on the Law
of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the
Philippine archipelago, adverse legal effects would have ensued. The Philippines would have
committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III
requires that "[t]he drawing of such baselines shall not depart to any appreciable extent
from the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III
requires that "the length of the baselines shall not exceed 100 nautical miles," save for three
per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31
9522, taking
the into
Philippines has consistently claimed sovereignty over the KIG32 and the
Scarborough
distance from the nearest shoreline of the Philippine archipelago, such that any straight
baseline loped around them from the nearest basepoint will inevitably "depart to an
appreciable extent from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took
pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call the Spratlys and
the Scarborough Shoal are outside our archipelagic baseline because if we put them inside
our baselines we might be accused of violating the provision of international law which
states: "The drawing of such baseline shall not depart to any appreciable extent from the
general configuration of the archipelago." So sa loob ng ating baseline, dapat magkalapit ang
mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago is
defined by the orange line which [we] call archipelagic baseline. Ngayon, tingnan ninyo ang
maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that
is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa
natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na
sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it
should follow the natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits. The
need to shorten this baseline, and in addition, to optimize the location of basepoints using
current maps, became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw the
outer limits of its maritime zones including the extended continental shelf in the manner
provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446,
the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article
47(2) of the [UNCLOS III], which states that "The length of such baselines shall not exceed
100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing
any archipelago may exceed that length, up to a maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west coasts
of Luzon down to Palawan were later found to be located either inland or on water, not on
low-water line and drying reefs as prescribed by Article 47.35
Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal,
Congress’ decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’
under the Republic of the Philippines consistent with Article 121"36 of UNCLOS III manifests
the Philippine State’s responsible observance of its pacta sunt servanda obligation under
UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded
by water, which is above water at high tide," such as portions of the KIG, qualifies under the
category of "regime of islands," whose islands generate their own applicable maritime
zones.
Statutory Claim Over Sabah under RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’
claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did
not repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago
as provided in this Act is without prejudice to the delineation of the baselines of the
territorial sea around the territory of Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not Incompatible with the Constitution’s Delineation of Internal
Waters
As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting
these waters to the right of innocent and sea lanes passage under UNCLOS III, including
overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine
internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.
Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or
as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises
sovereignty over the body of water lying landward of the baselines, including the air space
over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and
of their bed and subsoil. –
1. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelagic baselines drawn in accordance with article 47, described as archipelagic waters,
regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their
bed and subsoil, and the resources contained therein.
4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the exercise
by the archipelagic State of its sovereignty over such waters and their air space, bed and
subsoil, and the resources contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to necessary, if
not marginal, burdens in the interest of maintaining unimpeded, expeditious international
navigation, consistent with the international law principle of freedom of navigation. Thus,
domestically, the political branches of the Philippine government, in the competent
discharge of their constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III,
operate to grant innocent passage rights over the territorial sea or archipelagic waters,
subject to the treaty’s limitations and conditions for their exercise.42 Significantly, the right
of innocent passage is a customary international law,43 thus automatically incorporated in
the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to
absolutely forbid innocent passage that is exercised in accordance with customary
international law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage45 does not place them in lesser footing vis-à-vis
continental coastal States which are subject, in their territorial sea, to the right of innocent
passage and the right of transit passage through international straits. The imposition of
these passage rights through archipelagic waters under UNCLOS III was a concession by
archipelagic States, in exchange for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from the coast, as archipelagic waters
subject to their territorial sovereignty. More importantly, the recognition of archipelagic
States’ archipelago and the waters enclosed by their baselines as one cohesive entity
prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate
islands generate their own maritime zones, placing the waters between islands separated by
more than 24 nautical miles beyond the States’ territorial sovereignty, subjecting these
waters to the rights of other States under UNCLOS III.
Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of
Principles and State Policies) must also fail. Our present state of jurisprudence considers the
provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not
embody judicially enforceable constitutional rights x x x."49 Article II provisions serve as
guides in formulating and interpreting implementing legislation, as well as in interpreting
executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to
a healthful and balanced ecology under Section 16 of Article II as an exception, the present
petition lacks factual basis to substantiate the claimed constitutional violation. The other
provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2,
paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA
9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive
economic zone, reserving solely to the Philippines the exploitation of all living and non-living
resources within such zone. Such a maritime delineation binds the international community
since the delineation is in strict observance of UNCLOS III. If the maritime delineation is
contrary to UNCLOS III, the international community will of course reject it and will refuse to
be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space – the exclusive economic zone – in waters previously part of the high
seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources
found within this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the
traditional freedom of navigation of other States that attached to this zone beyond the
territorial sea before UNCLOS III.
RA 9522 and the Philippines’ Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not
bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we
find petitioners’ reading plausible. Nevertheless, the prerogative of choosing this option
belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes
at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State
like the Philippines will find itself devoid of internationally acceptable baselines from where
the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-
fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and
exploit the resources in the waters and submarine areas around our archipelago; and
second, it weakens the country’s case in any international dispute over Philippine maritime
space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of
the breadth of the Philippines’ maritime zones and continental shelf. RA 9522 is therefore a
 Category A Less than Exclusively for Filipino citizens and
most vital step on the part of the Philippines in safeguarding its maritime zones, consistent
US$2,500,000.00 corporations wholly owned by Filipino
with the Constitution and our national interest.
citizens.
WHEREFORE, we DISMISS the petition. Category B US$2,500,000.00 up but less For the first two years of R.A. 8762’s
SO ORDERED. than US$7,500,000.00 effectivity, foreign ownership is allowed
up to 60%. After the two-year period,
CASE 6: G.R. No. 143855               September 21, 2010 100% foreign equity shall be allowed.
REPRESENTATIVES GERARDO S. ESPINA, ORLANDO FUA, JR., PROSPERO AMATONG,
Category C US$7,500,000.00 or more May be wholly owned by foreigners.
ROBERT ACE S. BARBERS, RAUL M. GONZALES, PROSPERO PICHAY, JUAN MIGUEL ZUBIRI
Foreign investments for establishing a
and FRANKLIN BAUTISTA, Petitioners,
store in Categories B and C shall not be
vs.
less than the equivalent in Philippine
HON. RONALDO ZAMORA, JR. (Executive Secretary), HON. MAR ROXAS (Secretary of Trade
Pesos of US$830,000.00.
and Industry), HON. FELIPE MEDALLA (Secretary of National Economic and Development
Authority), GOV. RAFAEL BUENAVENTURA (Bangko Sentral ng Pilipinas) and HON. LILIA Category D US$250,000.00 per store of May be wholly owned by foreigners.
BAUTISTA (Chairman, Securities and Exchange Commission), Respondents. foreign enterprises
DECISION specializing in high-end or
ABAD, J.: luxury products
This case calls upon the Court to exercise its power of judicial review and determine the achieve equal distribution of opportunities, promote industrialization and full employment,
constitutionality of the Retail Trade Liberalization Act of 2000, which has been assailed as in and protect Filipino enterprise against unfair competition and trade policies.
breach of the constitutional mandate for the development of a self-reliant and independent Second, the implementation of R.A. 8762 would lead to alien control of the retail
national economy effectively controlled by Filipinos. trade, which taken together with alien dominance of other areas of business, would result in
the loss of effective Filipino control of the economy.
The Facts and the Case Third, foreign retailers like Walmart and K-Mart would crush Filipino retailers and
On March 7, 2000 President Joseph E. Estrada signed into law Republic Act (R.A.) 8762, also sari-sari store vendors, destroy self-employment, and bring about more unemployment.
known as the Retail Trade Liberalization Act of 2000. It expressly repealed R.A. 1180, which Fourth, the World Bank-International Monetary Fund had improperly imposed the
absolutely prohibited foreign nationals from engaging in the retail trade business. R.A. 8762 passage of R.A. 8762 on the government as a condition for the release of certain loans.
now allows them to do so under four categories: Fifth, there is a clear and present danger that the law would promote monopolies or
R.A. 8762 also allows natural-born Filipino citizens, who had lost their citizenship and now combinations in restraint of trade.
reside in the Philippines, to engage in the retail trade business with the same rights as
Filipino citizens. Respondents Executive Secretary Ronaldo Zamora, Jr., Trade and Industry Secretary Mar
Roxas, National Economic and Development Authority (NEDA) Secretary Felipe Medalla,
On October 11, 2000 petitioners ***Magtanggol T. Gunigundo I, Michael T. Defensor, Bangko Sentral ng Pilipinas Gov. Rafael Buenaventura, and Securities and Exchange
Gerardo S. Espina, Benjamin S. Lim, Orlando Fua, Jr., Prospero Amatong, Sergio Apostol, Commission Chairman Lilia Bautista countered that:
Robert Ace S. Barbers, Enrique Garcia, Jr., Raul M. Gonzales, Jaime Jacob, Apolinario Lozada,
Jr., Leonardo Montemayor, Ma. Elena Palma-Gil, Prospero Pichay, Juan Miguel Zubiri and First, petitioners have no legal standing to file the petition. They cannot invoke the
Franklin Bautista, all members of the House of Representatives, filed the present petition, fact that they are taxpayers since R.A. 8762 does not involve the disbursement of public
assailing the constitutionality of R.A. 8762 on the following grounds: funds. Nor can they invoke the fact that they are members of Congress since they made no
claim that the law infringes on their right as legislators.
First, the law runs afoul of Sections 9, 19, and 20 of Article II of the Constitution
which enjoins the State to place the national economy under the control of Filipinos to
 Second, the petition does not involve any justiciable controversy. Petitioners of
course claim that, as members of Congress, they represent the small retail vendors in their
respective districts but the petition does not allege that the subject law violates the rights of
those vendors.
Third, petitioners have failed to overcome the presumption of constitutionality of
R.A. 8762. Indeed, they could not specify how the new law violates the constitutional
provisions they cite. Sections 9, 19, and 20 of Article II of the Constitution are not self-
executing provisions that are judicially demandable.
Fourth, the Constitution mandates the regulation but not the prohibition of foreign
investments. It directs Congress to reserve to Filipino citizens certain areas of investments
upon the recommendation of the NEDA and when the national interest so dictates. But the
Constitution leaves to the discretion of the Congress whether or not to make such
reservation. It does not prohibit Congress from enacting laws allowing the entry of
foreigners into certain industries not reserved by the Constitution to Filipino citizens.
The Issues Presented
Simplified, the case presents two issues:
1. Whether or not petitioner lawmakers have the legal standing to challenge the
constitutionality of R.A. 8762; and
2. Whether or not R.A. 8762 is unconstitutional.
The Court’s Ruling
One. The long settled rule is that he who challenges the validity of a law must have a
standing to do so.1 Legal standing or locus standi refers to the right of a party to come to a
court of justice and make such a challenge. More particularly, standing refers to his personal
and substantial interest in that he has suffered or will suffer direct injury as a result of the
passage of that law.2 To put it another way, he must show that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the law he complains of. 3
Here, there is no clear showing that the implementation of the Retail Trade Liberalization
Act prejudices petitioners or inflicts damages on them, either as taxpayers 4 or as
legislators.5 Still the Court will resolve the question they raise since the rule on standing can
be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when
as in this case the public interest so requires or the matter is of transcendental importance,
of overarching significance to society, or of paramount public interest. 6
Two. Petitioners mainly argue that R.A. 8762 violates the mandate of the 1987
Constitution for the State to develop a self-reliant and independent national economy
effectively controlled by Filipinos. They invoke the provisions of the Declaration of Principles
and State Policies under Article II of the 1987 Constitution, which read as follows:
Section 9. The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty through
policies that provide adequate social services, promote full employment, a rising standard of
living, and an improved quality of life for all.
xxxx
Section 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
Section 20. The State recognizes the indispensable role of the private sector, encourages
private enterprise, and provides incentives to needed investments.
Petitioners also invoke the provisions of the National Economy and Patrimony under Article
XII of the 1987 Constitution, which reads:
Section 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may prescribe, certain areas of investments.
The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its national
jurisdiction and in accordance with its national goals and priorities.
xxxx
Section 12. The State shall promote the preferential use of Filipino labor, domestic materials
and locally produced goods, and adopt measures that help make them competitive.
Section 13. The State shall pursue a trade policy that serves the general welfare and utilizes
all forms and arrangements of exchange on the basis of equality and reciprocity.
But, as the Court explained in Tañada v. Angara,7 the provisions of Article II of the 1987
Constitution, the declarations of principles and state policies, are not self-executing.
Legislative failure to pursue such policies cannot give rise to a cause of action in the courts.
The Court further explained in Tañada that Article XII of the 1987 Constitution lays
down the ideals of economic nationalism: (1) by expressing preference in favor of qualified
Filipinos in the grant of rights, privileges and concessions covering the national economy and
patrimony and in the use of Filipino labor, domestic materials and locally-produced goods;
(2) by mandating the State to adopt measures that help make them competitive; and (3) by
requiring the State to develop a self-reliant and independent national economy effectively
controlled by Filipinos.8ten.lihpwal
In other words, while Section 19, Article II of the 1987 Constitution requires the
development of a self-reliant and independent national economy effectively controlled by
Filipino entrepreneurs, it does not impose a policy of Filipino monopoly of the economic
environment. The objective is simply to prohibit foreign powers or interests from
maneuvering our economic policies and ensure that Filipinos are given preference in all
areas of development.
Indeed, the 1987 Constitution takes into account the realities of the outside world as it
requires the pursuit of a trade policy that serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of equality and reciprocity; and speaks of
industries which are competitive in both domestic and foreign markets as well as of the
protection of Filipino enterprises against unfair foreign competition and trade practices.
Thus, while the Constitution mandates a bias in favor of Filipino goods, services, labor and
enterprises, it also recognizes the need for business exchange with the rest of the world on
the bases of equality and reciprocity and limits protection of Filipino enterprises only against
foreign competition and trade practices that are unfair. 9
In other words, the 1987 Constitution does not rule out the entry of foreign investments,
goods, and services. While it does not encourage their unlimited entry into the country, it
does not prohibit them either. In fact, it allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is unfair. 10 The key, as in all
economies in the world, is to strike a balance between protecting local businesses and
allowing the entry of foreign investments and services.
More importantly, Section 10, Article XII of the 1987 Constitution gives Congress the
discretion to reserve to Filipinos certain areas of investments upon the recommendation of
the NEDA and when the national interest requires. Thus, Congress can determine what
policy to pass and when to pass it depending on the economic exigencies. It can enact laws
allowing the entry of foreigners into certain industries not reserved by the Constitution to
Filipino citizens. In this case, Congress has decided to open certain areas of the retail trade
business to foreign investments instead of reserving them exclusively to Filipino citizens. The
NEDA has not opposed such policy.
The control and regulation of trade in the interest of the public welfare is of course an
exercise of the police power of the State. A person’s right to property, whether he is a
Filipino citizen or foreign national, cannot be taken from him without due process of law. In
1954, Congress enacted the Retail Trade Nationalization Act or R.A. 1180 that restricts the
retail business to Filipino citizens. In denying the petition assailing the validity of such Act for
violation of the foreigner’s right to substantive due process of law, the Supreme Court held
that the law constituted a valid exercise of police power. 11 The State had an interest in
preventing alien control of the retail trade and R.A. 1180 was reasonably related to that
purpose. That law is not arbitrary.
Here, to the extent that R.A. 8762, the Retail Trade Liberalization Act, lessens the
restraint on the foreigners’ right to property or to engage in an ordinarily lawful business, it
cannot be said that the law amounts to a denial of the Filipinos’ right to property and to due
process of law. Filipinos continue to have the right to engage in the kinds of retail business
to which the law in question has permitted the entry of foreign investors.
Certainly, it is not within the province of the Court to inquire into the wisdom of R.A. 8762
save when it blatantly violates the Constitution. But as the Court has said, there is no
showing that the law has contravened any constitutional mandate. The Court is not
convinced that the implementation of R.A. 8762 would eventually lead to alien control of
the retail trade business. Petitioners have not mustered any concrete and strong argument
to support its thesis. The law itself has provided strict safeguards on foreign participation in
that business. Thus –
First, aliens can only engage in retail trade business subject to the categories above-
enumerated; Second, only nationals from, or juridical entities formed or incorporated in
countries which allow the entry of Filipino retailers shall be allowed to engage in retail trade
business; and Third, qualified foreign retailers shall not be allowed to engage in certain
retailing activities outside their accredited stores through the use of mobile or rolling stores
or carts, the use of sales representatives, door-to-door selling, restaurants and sari-sari
stores and such other similar retailing activities.
In sum, petitioners have not shown how the retail trade liberalization has prejudiced and
can prejudice the local small and medium enterprises since its implementation about a
decade ago.
WHEREFORE, the Court DISMISSES the petition for lack of merit. No costs.
SO ORDERED.
CASE 7: G.R. No. 169815             August 13, 2008
BUREAU OF FISHERIES AND AQUATIC RESOURCES (BFAR) EMPLOYEES UNION, REGIONAL
OFFICE NO. VII, CEBU CITY, petitioner,
vs.
COMMISSION ON AUDIT, respondent.
DECISION
PUNO, C.J.:
On appeal are the Decision 1 dated April 8, 2005 of respondent Commission on Audit (COA)
in LAO-N-2005-119 upholding the disallowance by the COA Legal and Adjudication Office
(COA-LAO), Regional Office No. VII, Cebu City of the P10,000.00 Food Basket Allowance
granted by BFAR to each of its employees in 1999, and COA Resolution 2 dated August 5,
2005, denying petitioner’s motion for reconsideration of said Decision.
First, the facts:

On October 18, 1999, petitioner Bureau of Fisheries and Aquatic Resources (BFAR)
Employees Union, Regional Office No. VII, Cebu City issued Resolution No. 01, series of 1999
requesting the BFAR Central Office for a Food Basket Allowance. It justified its request on
the high cost of living, i.e., "the increase in prices of petroleum products which catapulted
the cost of food commodities, has greatly affected the economic conditions and living
standard of the government employees of BFAR Region VII and could hardly sustain its need
to cope up with the four (4) basic needs, i.e., food, shelter, clothing and education."3 It also
relied on the Employees Suggestions and Incentive Awards System (ESIAS), pursuant to Book
V of Executive Order No. 292, or the Administrative Code of 1987, and approved by the Civil
Service Commission on December 3, 1996. The ESIAS "includes the granting of incentives
that will help employees overcome present economic difficulties, boost their morale, and
further commitment and dedication to public service." 4 Regional Director Corazon M.
Corrales of BFAR Region VII indorsed the Resolution, and Malcolm I. Sarmiento, Jr., Director
of BFAR recommended its approval. Honorable Cesar M. Drilon, Jr., Undersecretary for
Fisheries and Livestock of the Department of Agriculture, approved the request for
Authority to Grant a Gift Check or the Food Basket Allowance at the rate of P10,000.00 each
to the 130 employees of BFAR Region VII, or in the total amount of P1,322,682.00.5 On the
strength of the approval, Regional Director Corrales released the allowance to the BFAR
employees.
On post audit, the Commission on Audit – Legal and Adjudication Office (COA-LAO)
Regional Office No. VII, Cebu City disallowed the grant of Food Basket Allowance under
Notice of Disallowance No. 2003-022-101 (1999) dated September 19, 2003. It ruled that the
allowance had no legal basis and that it violated: a) Sec. 15(d) of the General Appropriations
Act of 1999, prohibiting the payment of honoraria, allowances, or other forms of
compensation to any government official or employee, except those specifically authorized
by law; b) par. 4.5 of Budget Circular No. 16 dated November 28, 1998, prohibiting the grant
of food, rice, gift checks, or any other form of incentives/allowances, except those
authorized via Administrative Order by the Office of the President; and c) Sec. 12 of Republic
Act (R.A.) No. 6758, or the Salary Standardization Law of 1989, which includes all allowances
in the standardized salary rates, subject to certain exceptions.
On February 26, 2004, BFAR Regional Office No. VII, through Regional Director
Corrales, moved for reconsideration and prayed for the lifting of the disallowance. It argued
that the grant of Food Basket Allowance would enhance the welfare and productivity of the
employees. Further, it contended that the approval by the Honorable Drilon,
Undersecretary for Fisheries and Livestock, of the said benefit was the law itself which
vested the specific authority for its release. The Commission on Audit – Legal and
Adjudication Office (COA-LAO) Regional Office No. VII, Cebu City denied the motion.
Petitioner appealed to the Commission on Audit – Legal and Adjudication Office
(COA-LAO) National, Quezon City. The appeal was denied in a Decision dated April 8, 2005.
Petitioner’s motion for reconsideration was likewise denied in a Resolution dated August 5,
2005.
Hence, this appeal.
Petitioner cites the following grounds for its appeal:
1. The disallowance in question is unconstitutional as it contravenes the fundamental
principle of the State enshrined under Sections 9 and 10, Article II of the 1987 Constitution,
which provide as follows:
SEC. 9. The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty through
policies that provide adequate social services, promote full employment, a rising standard of
living, and an improved quality of life for all.
SEC. 10. The State shall promote social justice in all phases of national development. 6
2. The Undersecretary for Fisheries and Livestock is an extension of the Secretary of
Agriculture who is an alter-ego of the President. His approval was tantamount to the
authority from the Office of the President, as contemplated in DBM Budget Circular No. 16,
dated November 28, 1998.7
3. The grant of the Food Basket Allowance is in conformity with Sec. 12 of the Salary
Standardization Law.8
We deny the petition.
First, we rule on the issue of constitutionality. Petitioner invokes the provisions of
the 1987 Constitution on social justice to warrant the grant of the Food Basket Allowance.
Time and again, we have ruled that the social justice provisions of the Constitution are not
self-executing principles ready for enforcement through the courts. They are merely
statements of principles and policies. To give them effect, legislative enactment is required.
As we held in Kilosbayan, Incorporated v. Morato,9 the principles and state policies
enumerated in Article II and some sections of Article XII are "not self-executing provisions,
the disregard of which can give rise to a cause of action in the courts. They do not embody
judicially enforceable constitutional rights but guidelines for legislation." 10
Second, petitioner contends that the approval of the Department of Agriculture (DA)
Undersecretary for Fisheries and Livestock of the Food Basket Allowance is the law which
authorizes its release. It is crystal clear that the DA Undersecretary has no authority to grant
any allowance to the employees of BFAR. Section 4.5 of Budget Circular No. 16 dated
November 28, 1998 states:
 All agencies are hereby prohibited from granting any food, rice, gift checks, or any
other form of incentives/allowances except those authorized via Administrative Order by
the Office of the President.
In the instant case, no Administrative Order has been issued by the Office of the President
to exempt BFAR from the express prohibition against the grant of any food, rice, gift checks,
or any other form of incentive/allowance to its employees.
Petitioner argues that the grant of the Food Basket Allowance does not violate Sec. 12 of
R.A. No. 6758 or the Salary Standardization Law. This law was passed to standardize salary
rates among government personnel and do away with multiple allowances and other
incentive packages and the resulting differences in compensation among them. 11 Sec. 12 of
the law provides:
Consolidation of Allowances and Compensation. — All allowances, except for
representation and transportation allowances; clothing and laundry allowances; subsistence
allowance of marine officers and crew on board government vessels and hospital personnel;
hazard pay; allowances of foreign service personnel stationed abroad; and such other
additional compensation not otherwise specified herein as may be determined by the DBM
[Department of Budget and Management], shall be deemed included in the standardized
salary rates herein prescribed. Such other additional compensation, whether in cash or in
kind, being received by incumbents only as of July 1, 1989 not integrated into the
standardized salary rates shall continue to be authorized.
Existing additional compensation of any national government official or employee paid from
local funds of a local government unit shall be absorbed into the basic salary of said official
or employee and shall be paid by the National Government.
Under Sec. 12, as quoted, all kinds of allowances are integrated in the standardized salary
rates. The exceptions are:
1. representation and transportation allowance (RATA);
2. clothing and laundry allowance;
3. subsistence allowance of marine officers and crew on board government vessels;
4. subsistence allowance of hospital personnel;
5. hazard pay;
6. allowances of foreign service personnel stationed abroad; and
7. such other additional compensation not otherwise specified herein as may be determined
by the DBM.
Petitioner contends that the Food Basket Allowance falls under the 7 th category
above, that of "other additional compensation not otherwise specified herein as may be
determined by the DBM."
The Court has had the occasion to interpret Sec. 12 of R.A. No. 6758. In National Tobacco
Administration v. Commission on Audit,12 we held that under the first sentence of Section
12, the benefits excluded from the standardized salary rates are the "allowances" or those
which are usually granted to officials and employees of the government to defray or
reimburse the expenses incurred in the performance of their official functions. These are the
RATA, clothing and laundry allowance, subsistence allowance of marine officers and crew on
board government vessels and hospital personnel, hazard pay, and others, as enumerated in
the first sentence of Section 12. We further ruled that the phrase "and such other additional
compensation not otherwise specified herein as may be determined by the DBM" is a catch-
all proviso for benefits in the nature of allowances similar to those enumerated.
In Philippine Ports Authority v. Commission on Audit,13 we explained that if these
allowances were consolidated with the standardized salary rates, then government officials
or employees would be compelled to spend their personal funds in attending to their duties.
In the instant case, the Food Basket Allowance is definitely not in the nature of an allowance
to reimburse expenses incurred by officials and employees of the government in the
performance of their official functions. It is not payment in consideration of the fulfillment
of official duty. It is a form of financial assistance to all officials and employees of BFAR.
Petitioner itself stated that the Food Basket Allowance has the purpose of alleviating the
economic condition of BFAR employees.
Next, petitioner relies on National Compensation Circular No. 59 dated September 30, 1989,
issued by the DBM, which is the "List of Allowances/Additional Compensation of
Government Officials and Employees which shall be Deemed Integrated into the Basic
Salary." The list enumerates the following allowances/additional compensation which shall
be incorporated in the basic salary, hence, may no longer be granted to government
employees:
1. Cost of Living Allowance (COLA);
2. Inflation connected allowance;
3. Living Allowance;
4. Emergency Allowance;
5. Additional Compensation of Public Health Nurses assigned to public health nursing;
6. Additional Compensation of Rural Health Physicians;
7. Additional Compensation of Nurses in Malacañang Clinic;
8. Nurses Allowance in the Air Transportation Office;
9. Assignment Allowance of School Superintendents;
10. Post allowance of Postal Service Office employees;
11. Honoraria/allowances which are regularly given except the following:
a. those for teaching overload;
b. in lieu of overtime pay;
 c. for employees on detail with task forces/special projects;
d. researchers, experts and specialists who are acknowledged authorities in their
field of specialization;
e. lecturers and resource persons;
f. Municipal Treasurers deputized by the Bureau of Internal Revenue to collect and
remit internal revenue collections; and
g. Executive positions in State Universities and Colleges filled by designation from
among their faculty members.
12. Subsistence Allowance of employees except those authorized under EO [Executive
Order] No. 346 and uniformed personnel of the Armed Forces of the Philippines and
Integrated National Police;
13. Laundry Allowance of employees except those hospital/sanitaria personnel who attend
directly to patients and who by the nature of their duties are required to wear uniforms,
prison guards and uniformed personnel of the Armed Forces of the Philippines and
Integrated National Police; and
14. Incentive allowance/fee/pay except those authorized under the General Appropriations
Act and Section 33 of P.D. No. 807.
Petitioner invokes the rule of statutory construction that "what is not included is
excluded." Inclusio unius est exclusio alterius. Petitioner claims that the Food Basket
Allowance is distinct and separate from the specific allowances/additional compensation
listed in the circular.
Again, we reject petitioner’s contention. The Food Basket Allowance falls under the
14th category, that of incentive allowance/fee/pay. Petitioner itself justified the Food Basket
Allowance as an incentive to the employees to encourage them to be more productive and
efficient.14 Under National Compensation Circular No. 59, exceptions to the incentive
allowance/fee/pay category are those authorized under the General Appropriations Act
(GAA) and Section 33 of Presidential Decree (P.D.) No. 807. Sec. 15(d) of the GAA for Fiscal
Year 1999 or R.A. No. 8745 clearly prohibits the payment of honoraria, allowances or other
forms of compensation to any government official or employee, except those specifically
authorized by law. There is no law authorizing the grant of the subject Food Basket
Allowance. Further, Sec. 33 of P.D. No. 807 or the Civil Service Decree of the Philippines
does not exempt the Food Basket Allowance from the general rule. Sec. 33 states:
Section 33. Employee Suggestions and Incentive Award System. There shall be established a
government-wide employee suggestions and incentive awards system which shall be
administered under such rules, regulations, and standards as may be promulgated by the
Commission.
In accordance with rules, regulations, and standards promulgated by the Commission, the
President or the head of each department or agency is authorized to incur whatever
necessary expenses involved in the honorary recognition of subordinate officers and
employees of the government who by their suggestions, inventions, superior
accomplishment, and other personal efforts contribute to the efficiency, economy, or other
improvement of government operations, or who perform such other extraordinary acts or
services in the public interest in connection with, or in relation to, their official employment.
We are not convinced that the Food Basket Allowance falls under the incentive
award system contemplated above. The decree speaks of suggestions, inventions, superior
accomplishments, and other personal efforts contributed by an employee to the efficiency,
economy, or other improvement of government operations, or other extraordinary acts or
services performed by an employee in the public interest in connection with, or in relation
to, his official employment. In the instant case, the Food Basket Allowance was granted to
all BFAR employees, without distinction. It was not granted due to any extraordinary
contribution or exceptional accomplishment by an employee. The Food Basket Allowance
was primarily an economic monetary assistance to the employees.
Lastly, we note, as the Office of the Solicitor General, on behalf of respondent did,
that petitioner failed to exhaust its administrative remedies. It stopped seeking remedies at
the level of respondent’s Legal and Adjudication Office. It failed to appeal the latter’s
adverse decision to the Commission on Audit proper. The consequence for failure to exhaust
administrative remedies is clear: the disallowance, as ruled by the Commission on Audit –
Legal and Adjudication Office Regional Office No. VII, Cebu City and upheld by the
Commission on Audit – Legal and Adjudication Office National, Quezon City, became final
and executory. Sections 48 and 51 of Presidential Decree No. 1445, or the Government
Auditing Code of the Philippines provide:
Section 48. Appeal from decision of auditors. – Any person aggrieved by the decision of an
auditor of any government agency in the settlement of an account or claim may, within six
months from receipt of a copy of the decision, appeal in writing to the Commission.
Section 51. Finality of decisions of the Commission or any auditor. – A decision of the
Commission or of any auditor upon any matter within its or his jurisdiction, if not appealed
as herein provided, shall be final and executory.
IN VIEW WHEREOF, the petition is DENIED. The Decision and Resolution of the Commission
on Audit – Legal and Adjudication Office dated April 8, 2005 and August 5, 2005,
respectively, in LAO-N-2005-119, are AFFIRMED.
SO ORDERED.
CASE 8: G.R. No. 118973 August 12, 1998
POLYMART PAPER INDUSTRIES, INC. and CAYETANO TAGLE, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION, RICARDO ADVINCULA, LAURENCE MEREN,
GERARDO ALCARAZ, NORBERTO DIAVARRA, NELSON MALANA, DANILO PAPA, RICARDO
BULAWAN and ALBERTO LOSALA, respondents.
MARTINEZ, J.:
Retrenchment is a management prerogative, a means to protect and preserve the
employer's viability and ensure his survival. 1 It is one of the economic grounds to dismiss an
employee resorted to by an employer primarily to avoid or minimize business losses. 2 In this
regard, the employer bears the burden to prove his allegation of economic or business
reverses, 3 otherwise, it necessarily means that the dismissal of an employee was not
justified. 4
We apply this precept in the present case where herein private respondents, 5 employees of
petitioner Polymart Paper Industries, Inc. (Polymart), were dismissed on July 4, 1992 on the
ground of retrenchment.
Polymart notified all its weekly and monthly employees on the proposed retrenchment due
to serious financial losses in a memorandum 6 dated June 4, 1992 which was posted on the
bulletin board of the factory and signed by Cayetano Tagle, its General Manager. In another
memorandum 7 dated July 2, 1992 posted also on the bulletin board of the factory, the
names of private respondents and two (2) others were included in the list of employees to
be retrenched. Copies of said memorandum were allegedly served on private respondents
but they refused to accept it.
Private respondents were the officers of the National Mines and Allied Worker's Union
(NAMAWU) at Local 137 of Polymart. NAMAWU filed a notice of strike which did not
materialize for failure to obtain a favorable strike vote. Two (2) 8 out of the ten (10)
retrenched employees accepted their separation pay. Private respondents were targeted to
be the first batch of employees to be retrenched by Polymart because of their previous
misdemeanors. Thus, on August 11, 1992, private respondents filed before the Labor Arbiter
a complaint for illegal dismissal and unfair labor practice against Polymart.
In a Decision 9 dated March 12, 1993, Labor Arbiter Jose G. De Vera found that the dismissal
of private respondents was valid on the ground of retrenchment and ruled out any unfair
labor practice by Polymart. While private respondents' prayer for reinstatement was denied,
the Labor Arbiter, however, granted them separation pay, 10 disposing the case in this
manner:
WHEREFORE, all the foregoing premises being considered, judgment is hereby rendered
dismissing the complaint for lack of merit without prejudice to the complainants' separation
pay computed at the total of P63,336.00 which the respondent company is hereby ordered
to pay. The separation pay of complainant Nelson Malana shall be computed upon proof of
his latest salary and length of service.
SO ORDERED. 11
On appeal, the National Labor Relations Commission (NLRC) set aside the Labor Arbiter's
decision and directed the reinstatement of respondents. Thus,
WHEREFORE, the appealed decision is hereby set aside. The respondents are hereby
directed to reinstate the complainants to their former positions last held with full
backwages from the time their wages were withheld up to the time they are actually
reinstated.
SO ORDERED. 12
The motion for reconsideration having been denied by the NLRC, 13 Polymart now seeks the
nullification thereof and prays that private respondents be enjoined from executing the
assailed NLRC decision.
I a resolution 14 by this Court, a Temporary Restraining Order 15 was issued in favor of
Polymart enjoining respondents from enforcing the challenged decision.
It is the task of this Court to resolve the validity of private respondents' dismissal on the
ground of retrenchment.
We rule in the negative.
We defined retrenchment or "lay-off" in layman's parlance as the termination of
employment initiated by the employer through no fault of the employees and without
prejudice to the latter, resorted to by management during periods of business recession,
industrial depression, or seasonal fluctuations or during lulls occasioned by lack of orders,
shortage of materials, conversion of the plant for a new production program or the
introduction of new methods or more efficient machinery, or of automation. 16 Simply put, it
is an act of the employer of dismissing employees because of losses in the operation of a
business, lack of work, and considerable reduction on the volume of his business, a right
consistently recognized and affirmed by this Court. 17
Art. 283 of the Labor Code, as amended, 18 recognizes retrenchment as a mode of
terminating an employment relationship.
Under this provision, there are three basic requisites for a valid retrenchment. These are: (a)
the retrenchment is necessary to prevent losses and such losses are proven; (b) written
notice to the employees and to the DOLE at least one month prior to the intended date of
retrenchment, and (c) payment of separation pay equivalent to one month pay or at least
one-half (1/2) month's pay for every year of service, whichever is higher. 19
To justify retrenchment, the "loss" referred to in Art. 283 cannot be just any kind or amount
of loss; otherwise, a company could easily feign excuses to suit its whims and prejudices or
to rid itself of unwanted employees. To guard against this possibility of abuse, the Court has
laid down the following standard which a company must meet to justify retrenchment: 20
. . . Firstly, the losses expected should be substantial and not merely de minimis in extent. If
the loss purportedly sought to be forestalled by retrenchment is clearly shown to be
insubstantial and inconsequential in character, the bonafide nature of the retrenchment
would appear to be seriously in question. Secondly, the substantial loss apprehended must
be reasonably imminent, as such imminence can be perceived objectively and in good faith
by the employer. There should, in other words, be a certain degree of urgency for the
retrenchment, which is after all a drastic recourse with serious consequences for the
livelihood of the employees retired or otherwise laid off. Because of the consequential
nature of retrenchment, it must, thirdly, be reasonably necessary and likely to effectively
prevent the expected losses. The employer should have taken other measures prior or
parallel to retrenchment to forestall losses, i.e., cut other costs other than labor costs. An
employer who, for instance, lays off substantial numbers of workers while continuing to
dispense fat executive bonuses and perquisites or so-called "golden parachutes," can
scarcely claim to be retrenching in good faith to avoid losses. To impart operational meaning
to the constitutional policy of providing "full protection" to labor, the employer's
prerogative to bring down labor costs by retrenching must be exercised essentially as a
measure of last resort, after less drastic means — e.g., reduction of both management and
rank-and-file bonuses and salaries, going on reduced time, improving manufacturing
efficiencies, trimming of marketing and advertising costs, etc. — have been tried and found
wanting..
Lastly, but certainly not the least important, alleged losses if already realized, and the
expected imminent losses sought to be forestalled, must be proved by sufficient and
convincing evidence. The reason for requiring this quantum of proof is readily apparent: any
less exacting standard of proof would render too easy the abuse of this ground for
termination of services of employees. . . . 21
Polymart claims that it suffered huge financial losses in 1992 due to unsold inventories of
finished products amounting to P6 million compounded by continuous and long brownouts,
as shown in an affidavit 22 executed by Benjamin Gan, assistant to petitioner Cayetano Tagle,
the General Manager.
The nebulous claim of Polymart that it incurred business losses in terms of production hours
was not amply supported by the evidence on record. The affidavit of Benjamin Gan is self-
serving evidence. There was no proof of such substantial and imminent loss that would be
incurred in the event that the retrenchment of respondents were not enjoined. It could
have at least presented financial statements by independent auditors on the possible
business reverses as basis for terminating respondents which is reasonably necessary to
forestall the expected losses. We reiterate the principle that "not every loss incurred or
expected to be incurred by a company will justify retrenchment. The losses must be
substantial and the retrenchment must be reasonably necessary to avert such
losses." 23 Retrenchment is only "a measure of last resort when other less drastic means
have been tried and found to be inadequate." 24
The bare assertion of Polymart that it suffered total shutdown hours of 45.16% for the
entire period from January 1, 1992 to November 18, 1992, which is more than 4 months of
the 10 months and 18 days production period, would not constitute sufficient and
convincing evidence in the absence of any proof to that effect. Besides, it failed to show that
cost reduction measures were taken before retrenchment was effected. A convenient
reliance on previous misdemeanors of respondents as an additional ground for easing them
out of Polymart is not proper.
In a Resolution 25 dated August 9, 1995, this Court required Polymart to submit its corporate
secretary's certificate of authorized signatory and a sworn statement of assets and liabilities.
After forwarding the Certification, 26 Polymart submitted its audited Balance Sheet 27 ending
as of August 31, 1995. The subsequent submission of balance sheet would not in any way
validate its failure to present the same on an earlier date in order to establish the fact of
increased losses prior to the respondents' termination.
More to the point, we do not find that the alleged losses occasioned by the power outages
besieging our country at that time would reasonably necessitate retrenchment. Polymart
should have adjusted its work schedule in response to the energy crises.
Settled is the rule that the employer bears the burden of proving an allegation of the
existence or imminence of substantial losses, which by its nature is an affirmative defense. It
is the duty of the employer to prove with clear and satisfactory evidence that legitimate
business reasons exist to justify retrenchment. 28 Failure to do so inevitably results in a
finding that the dismissal is unjustified. 29 And the determination of whether an employer
has sufficiently and successfully discharged this burden of proof is essentially a question of
fact for the Labor Arbiter and the NLRC to determine. 30 We agree with the respondent NLRC
that the retrenchment measure undertaken was not justified.
Anent the manner by which the employment of respondents was terminated, we rule that
the procedural requirements were not complied with. The facts show that all the weekly
and monthly employees were notified through a memorandum dated June 4, 1992 on the
proposed retrenchment which was posted on the bulletin board of the factory. It was only in
the second memorandum dated July 2, 1992, also posted on the bulletin board of the
factory, that respondents were named.
It is noteworthy that both memoranda specified that the retrenchment will take effect on
July 4, 1992. Therefore, there was no compliance with the "one-month notice prior to the
effective date of retrenchment" requirement mandated by Article 283 of the Labor Code.
Even assuming that individual copies of the second memorandum were furnished the
respondents on July 2, 1992, which they refused to accept, such manner of service does not
negate the fact of non-compliance. It is to be stressed that the earlier memorandum dated
June 4, 1992 made no mention of the names of respondents. If at all, it was merely a general
information directed to all weekly and monthly employees of Polymart. Therefore, the
reckoning date must be June 4, 1992 in order that a valid termination can be effected on
July 4, 1992.
Incidentally, on February 1993, Polymart allegedly ceased operations due to serious financial
reverses but no concrete proof was presented to substantiate its allegation.
Prescinding from all the foregoing, while it is true that retrenchment is a management
prerogative, it is still subject to faithful compliance with the substantive and procedural
requirements laid down by law and jurisprudence. Retrenchment strikes at the very core of
an individual's employment, which may be the only lifeline on which he and his family
depend for survival. 31
WHEREFORE, the petition is DISMISSED. The assailed Decision and Order of the NLRC are
AFFIRMED. Respondents shall be reinstated to their former or equivalent positions without
loss of seniority rights and full backwages from the time of the termination of their
employment on July 4, 1992. However, if reinstatement can no longer be effected,
separation pay shall be correspondingly awarded in lieu thereof.
SO ORDERED.
CASE 9: G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA
SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents
ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents
SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA,
minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V.
PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE
ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING,
minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and
THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents
BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA,
minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR.
and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and
LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA,
minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH,
STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their
parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and
MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful
ecology which the petitioners dramatically associate with the twin concepts of "inter-
generational responsibility" and "inter-generational justice." Specifically, it touches on the
issue of whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66
(Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region.
The principal plaintiffs therein, now the principal petitioners, are all minors duly represented
and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized
for the purpose of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners. 1 The complaint2 was
instituted as a taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the
Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of
the natural resource treasure that is the country's virgin tropical forests." The same was
filed for themselves and others who are equally concerned about the preservation of said
resource but are "so numerous that it is impracticable to bring them all before the Court."
The minors further asseverate that they "represent their generation as well as generations
yet unborn."4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to
— As their cause of action, they specifically allege that:
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100
islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush
and verdant rainforests in which varied, rare and unique species of flora and fauna may be
found; these rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed,
endured and flourished since time immemorial; scientific evidence reveals that in order to
maintain a balanced and healthful ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a host of
environmental tragedies, such as (a) water shortages resulting from drying up of the water
table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b)
salinization of the water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the island of Cebu and the Municipality
of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and
agricultural productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum — approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied
flora and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical reduction in
marine resource productivity, (g) recurrent spells of drought as is presently experienced by
the entire country, (h) increasing velocity of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence
of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of
multi-billion peso dams constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and (k) the reduction of the
earth's capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming, otherwise known
as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be
submitted as a matter of judicial notice. This notwithstanding, they expressed their intention
to present expert witnesses as well as documentary, photographic and film evidence in the
course of the trial.
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of
rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and
about 3.0 million hectares of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex
"A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour — nighttime, Saturdays, Sundays and holidays included — the Philippines
will be bereft of forest resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of
this continued trend of deforestation to the plaintiff minor's generation and to generations
yet unborn are evident and incontrovertible. As a matter of fact, the environmental
damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered
by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining
forest stands will work great damage and irreparable injury to plaintiffs — especially plaintiff
minors and their successors — who may never see, use, benefit from and enjoy this rare and
unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural
resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and
are entitled to protection by the State in its capacity as the  parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On
March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits
in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing
serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of
the rights of plaintiffs, especially plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the
public policy enunciated in the Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State —
(a) to create, develop, maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations
of Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of
dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is
contradictory to the Constitutional policy of the State to —
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full
and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14,
Article XIV, id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind — the natural law —
and violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant
action to arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss
the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action
against him and (2) the issue raised by the plaintiffs is a political question which properly
pertains to the legislative or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a
justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss.7 In the said order, not only was the defendant's claim — that the complaint states
no cause of action against him and that it raises a political question — sustained, the
respondent Judge further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised
Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground
that the respondent Judge gravely abused his discretion in dismissing the action. Again, the
parents of the plaintiffs-minors not only represent their children, but have also joined the
latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required the parties to
submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a
Comment in behalf of the respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as
it contains sufficient allegations concerning their right to a sound environment based on
Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order
(E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of
the people to a balanced and healthful ecology, the concept of generational genocide in
Criminal Law and the concept of man's inalienable right to self-preservation and self-
perpetuation embodied in natural law. Petitioners likewise rely on the respondent's
correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for logging
than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not
contracts. They likewise submit that even if TLAs may be considered protected by the said
clause, it is well settled that they may still be revoked by the State when the public interest
so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any relief is
provided by law. They see nothing in the complaint but vague and nebulous allegations
concerning an "environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as  parens patriae." Such allegations, according to
them, do not reveal a valid cause of action. They then reiterate the theory that the question
of whether logging should be permitted in the country is a political question which should
be properly addressed to the executive or legislative branches of Government. They
therefore assert that the petitioners' resources is not to file an action to court, but to lobby
before Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot
be done by the State without due process of law. Once issued, a TLA remains effective for a
certain period of time — usually for twenty-five (25) years. During its effectivity, the same
can neither be revised nor cancelled unless the holder has been found, after due notice and
hearing, to have violated the terms of the agreement or other forestry laws and regulations.
Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite
hearing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners
instituted Civil Case No. 90-777 as a class suit. The original defendant and the present
respondents did not take issue with this matter. Nevertheless, We hereby rule that the said
civil case is indeed a class suit. The subject matter of the complaint is of common and
general interest not just to several, but to all citizens of the Philippines. Consequently, since
the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all
of them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the
requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of
Court are present both in the said civil case and in the instant petition, the latter being but
an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they
represent their generation as well as generations yet unborn. We find no difficulty in ruling
that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations
can only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter expounded,
considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such
rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present as well as
future generations. 10 Needless to say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection
of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the
merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent Judge's challenged order for having
been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but
agree with the defendant. For although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they
are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and
redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete
with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of by this
Court without doing violence to the sacred principle of "Separation of Powers" of the three
(3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs,  i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong committed, and
that the complaint is replete with vague assumptions and conclusions based on unverified
data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the
same article:
Sec. 15. The State shall protect and promote the right to health of the people and instill
health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated in the latter. Such a right
belongs to a different category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the
advancement of which may even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly mentioned in
the fundamental charter, it is because of the well-founded fear of its framers that unless the
rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon
the state a solemn obligation to preserve the first and protect and advance the second, the
day would not be too far when all else would be lost not only for the present generation,
but also for those to come — generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain
from impairing the environment. During the debates on this right in one of the plenary
sessions of the 1986 Constitutional Commission, the following exchange transpired between
Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the
section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution — air,
water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the
correlative duty of not impairing the same and, therefore, sanctions may be provided for
impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests.
Without such forests, the ecological or environmental balance would be irreversiby
disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to
health, as well as the other related provisions of the Constitution concerning the
conservation, development and utilization of the country's natural resources, 13 then
President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of Environment and Natural Resources
"shall be the primary government agency responsible for the conservation, management,
development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and
watershed areas, and lands of the public domain, as well as the licensing and regulation of
all natural resources as may be provided for by law in order to ensure equitable sharing of
the benefits derived therefrom for the welfare of the present and future generations of
Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country's
forest, mineral, land, off-shore areas and other natural resources, including the protection
and enhancement of the quality of the environment, and equitable access of the different
segments of the population to the development and the use of the country's natural
resources, not only for the present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation
of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative
Code of 1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino
people, the full exploration and development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity
of maintaining a sound ecological balance and protecting and enhancing the quality of the
environment and the objective of making the exploration, development and utilization of
such natural resources equitably accessible to the different segments of the present as well
as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account
social and environmental cost implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on
the other hand, specifically speaks of the mandate of the DENR; however, it makes
particular reference to the fact of the agency's being subject to law and higher authority.
Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be
primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization,
and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will
serve as the bases for policy formulation, and have defined the powers and functions of the
DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the "environmental right" of the present
and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and
P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable harmony with each other, (b)
to fulfill the social, economic and other requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a
life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each
generation as trustee and guardian of the environment for succeeding generations." 17 The
latter statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and
advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to
respect or protect the same gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave abuse of discretion, violated
their right to a balanced and healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its
essential elements are legal right of the plaintiff, correlative obligation of the defendant, and
act or omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the complaint itself. No other
matter should be considered; furthermore, the truth of falsity of the said allegations is
beside the point for the truth thereof is deemed hypothetically admitted. The only issue to
be resolved in such a case is: admitting such alleged facts to be true, may the court render a
valid judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost
care and circumspection in passing upon a motion to dismiss on the ground of the absence
thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts
alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-heading
CAUSE OF ACTION, to be adequate enough to show,  prima facie, the claimed violation of
their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is
concerned, there is the need to implead, as party defendants, the grantees thereof for they
are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the enforcement of a right vis-a-
vis policies already formulated and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer, the insurmountable obstacle to
the exercise of judicial power or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The second paragraph of section 1, Article
VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A.
Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving
the settlement of conflicting rights as conferred as law. The second part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before forbidden territory, to wit, the discretion of the political departments of the
government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature
and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion,"
which is a very elastic phrase that can expand or contract according to the disposition of the
judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from revolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even the political question.
Article VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment
of contracts clause found in the Constitution. The court a quo  declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so,
he would have acted with utmost infidelity to the Government by providing undue and
unwarranted benefits and advantages to the timber license holders because he would have
forever bound the Government to strictly respect the said licenses according to their terms
and conditions regardless of changes in policy and the demands of public interest and
welfare. He was aware that as correctly pointed out by the petitioners, into every timber
license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify,
replace or rescind any contract, concession, permit, licenses or any other form of privilege
granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber license
is not a contract within the purview of the due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by public interest or public welfare as in
this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not
a contract between the authority, federal, state, or municipal, granting it and the person to
whom it is granted; neither is it property or a property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does
not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54
O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which
the State regulates the utilization and disposition of forest resources to the end that public
welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege
granted by the State to qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest products therein. They may
be validly amended, modified, replaced or rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed contracts within the purview of the due
process of law clause [See  Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also,
Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case
does not involve a law or even an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be
invoked. Nevertheless, granting further that a law has actually been passed mandating
cancellations or modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such as law could have
only been passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology, promoting their
health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The
same is understood to be subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by the exercise of the police
power of the State, in the interest of public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine
American Life Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both shall be
free of governmental interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the common
interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could
apply with respect to the prayer to enjoin the respondent Secretary from receiving,
accepting, processing, renewing or approving new timber licenses for, save in cases
of renewal, no contract would have as of yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their complaint to implead as
defendants the holders or grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason,
JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
 
 
 
Separate Opinions
 
FELICIANO, J.,  concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this
case which, to my mind, is one of the most important cases decided by this Court in the last
few years. The seminal principles laid down in this decision are likely to influence profoundly
the direction and course of the protection and management of the environment, which of
course embraces the utilization of all the natural resources in the territorial base of our
polity. I have therefore sought to clarify, basically to myself, what the Court appears to be
saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the
bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit. I understand locus
standi to refer to the legal interest which a plaintiff must have in the subject matter of the
suit. Because of the very broadness of the concept of "class" here involved — membership
in this "class" appears to embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of
action petitioners seek to require public respondents to take, is vested with the
necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries'
right of action in the field of environmental protection, as against both the public
administrative agency directly concerned and the private persons or entities operating in
the field or sector of activity involved. Whether such beneficiaries' right of action may be
found under any and all circumstances, or whether some failure to act, in the first instance,
on the part of the governmental agency concerned must be shown ("prior exhaustion of
administrative remedies"), is not discussed in the decision and presumably is left for future
determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14).
There is no question that "the right to a balanced and healthful ecology" is "fundamental"
and that, accordingly, it has been "constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be characterized as "specific,"
without doing excessive violence to language. It is in fact very difficult to fashion language
more comprehensive in scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and
smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage
and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on open land, streets
and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other
living sea resources through the use of dynamite or cyanide and other chemicals;
contamination of ground water resources; loss of certain species of fauna and flora; and so
on. The other statements pointed out by the Court: Section 3, Executive Order No. 192
dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D.
No. 1151, dated 6 June 1977 — all appear to be formulations of  policy, as general and
abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right —
to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon
the other hand, a compendious collection of more "specific environment management
policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating
to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court
has identified the particular provision or provisions (if any) of the Philippine Environment
Code which give rise to a specific legal right which petitioners are seeking to enforce.
Secondly, the Philippine Environment Code identifies with notable care the particular
government agency charged with the formulation and implementation of guidelines and
programs dealing with each of the headings and sub-headings mentioned above. The
Philippine Environment Code does not, in other words, appear to contemplate action on the
part of  private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right
comprised in the constitutional statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-reaching in nature even to
be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific
legal right — a right cast in language of a significantly lower order of generality than Article II
(15) of the Constitution — that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can validly render
judgment granting all or part of the relief prayed for. To my mind, the Court should be
understood as simply saying that such a more specific legal right or rights may  well exist in
our corpus of law, considering the general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial court should have given
petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings
on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of
action be a specific, operable legal right, rather than a constitutional or statutory  policy, for
at least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to
defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back on
the expanded conception of judicial power in the second paragraph of Section 1 of Article
VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis
supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should cancel, must
be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to
the relief demanded is not  dependent upon proof of breach by the timber companies of one
or more of the specific terms and conditions of their concession agreements (and this,
petitioners implicitly assume), what will those companies litigate about? The answer I
suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners'
specific legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment,
including the forest cover of our territory, is of extreme importance for the country. The
doctrines set out in the Court's decision issued today should, however, be subjected to
closer examination.
 
 
# Separate Opinions
FELICIANO, J.,  concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this
case which, to my mind, is one of the most important cases decided by this Court in the last
few years. The seminal principles laid down in this decision are likely to influence profoundly
the direction and course of the protection and management of the environment, which of
course embraces the utilization of all the natural resources in the territorial base of our
polity. I have therefore sought to clarify, basically to myself, what the Court appears to be
saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the
bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit. I understand locus
standi to refer to the legal interest which a plaintiff must have in the subject matter of the
suit. Because of the very broadness of the concept of "class" here involved — membership
in this "class" appears to embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of
action petitioners seek to require public respondents to take, is vested with the
necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries'
right of action in the field of environmental protection, as against both the public
administrative agency directly concerned and the private persons or entities operating in
the field or sector of activity involved. Whether such beneficiaries' right of action may be
found under any and all circumstances, or whether some failure to act, in the first instance,
on the part of the governmental agency concerned must be shown ("prior exhaustion of
administrative remedies"), is not discussed in the decision and presumably is left for future
determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14).
There is no question that "the right to a balanced and healthful ecology" is "fundamental"
and that, accordingly, it has been "constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be characterized as "specific,"
without doing excessive violence to language. It is in fact very difficult to fashion language
more comprehensive in scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and
smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage
and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on open land, streets
and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other
living sea resources through the use of dynamite or cyanide and other chemicals;
contamination of ground water resources; loss of certain species of fauna and flora; and so
on. The other statements pointed out by the Court: Section 3, Executive Order No. 192
dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D.
No. 1151, dated 6 June 1977 — all appear to be formulations of  policy, as general and
abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right —
to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon
the other hand, a compendious collection of more "specific environment management
policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating
to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court
has identified the particular provision or provisions (if any) of the Philippine Environment
Code which give rise to a specific legal right which petitioners are seeking to enforce.
Secondly, the Philippine Environment Code identifies with notable care the particular
government agency charged with the formulation and implementation of guidelines and
programs dealing with each of the headings and sub-headings mentioned above. The
Philippine Environment Code does not, in other words, appear to contemplate action on the
part of  private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right
comprised in the constitutional statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-reaching in nature even to
be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific
legal right — a right cast in language of a significantly lower order of generality than Article II
(15) of the Constitution — that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can validly render
judgment granting all or part of the relief prayed for. To my mind, the Court should be
understood as simply saying that such a more specific legal right or rights may  well exist in
our corpus of law, considering the general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial court should have given
petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings
on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of
action be a specific, operable legal right, rather than a constitutional or statutory  policy, for
at least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to
defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back on
the expanded conception of judicial power in the second paragraph of Section 1 of Article
VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis
supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should cancel, must
be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to
the relief demanded is not  dependent upon proof of breach by the timber companies of one
or more of the specific terms and conditions of their concession agreements (and this,
petitioners implicitly assume), what will those companies litigate about? The answer I
suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners'
specific legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment,
including the forest cover of our territory, is of extreme importance for the country. The
doctrines set out in the Court's decision issued today should, however, be subjected to
closer examination.
CASE 10: G.R. Nos. 171947-48 December 18, 2008
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1
DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC
WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE COAST
GUARD, PHILIPPINE NATIONAL POLICE MARITIME GROUP, and DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS
QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA,
FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON
SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, respondents.
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a cause of climate change, has of late
gained the attention of the international community. Media have finally trained their sights
on the ill effects of pollution, the destruction of forests and other critical habitats, oil spills,
and the unabated improper disposal of garbage. And rightly so, for the magnitude of
environmental destruction is now on a scale few ever foresaw and the wound no longer
simply heals by itself.2 But amidst hard evidence and clear signs of a climate crisis that need
bold action, the voice of cynicism, naysayers, and procrastinators can still be heard.
This case turns on government agencies and their officers who, by the nature of their
respective offices or by direct statutory command, are tasked to protect and preserve, at the
first instance, our internal waters, rivers, shores, and seas polluted by human activities. To
most of these agencies and their official complement, the pollution menace does not seem
to carry the high national priority it deserves, if their track records are to be the norm. Their
cavalier attitude towards solving, if not mitigating, the environmental pollution problem, is a
sad commentary on bureaucratic efficiency and commitment.
At the core of the case is the Manila Bay, a place with a proud historic past, once brimming
with marine life and, for so many decades in the past, a spot for different contact recreation
activities, but now a dirty and slowly dying expanse mainly because of the abject official
indifference of people and institutions that could have otherwise made a difference.
This case started when, on January 29, 1999, respondents Concerned Residents of Manila
Bay filed a complaint before the Regional Trial Court (RTC) in Imus, Cavite against several
government agencies, among them the petitioners, for the cleanup, rehabilitation, and
protection of the Manila Bay. Raffled to Branch 20 and docketed as Civil Case No. 1851-99 of
the RTC, the complaint alleged that the water quality of the Manila Bay had fallen way
below the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or
the Philippine Environment Code. This environmental aberration, the complaint stated,
stemmed from:
x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of
the defendants] resulting in the clear and present danger to public health and in the
depletion and contamination of the marine life of Manila Bay, [for which reason] ALL
defendants must be held jointly and/or solidarily liable and be collectively ordered to clean
up Manila Bay and to restore its water quality to class B waters fit for swimming, skin-diving,
and other forms of contact recreation.3
In their individual causes of action, respondents alleged that the continued neglect of
petitioners in abating the pollution of the Manila Bay constitutes a violation of, among
others:

(1) Respondents’ constitutional right to life, health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the
Manila Bay and submit to the RTC a concerted concrete plan of action for the purpose.
The trial of the case started off with a hearing at the Manila Yacht Club followed by an
ocular inspection of the Manila Bay. Renato T. Cruz, the Chief of the Water Quality
Management Section, Environmental Management Bureau, Department of Environment
and Natural Resources (DENR), testifying for petitioners, stated that water samples collected
from different beaches around the Manila Bay showed that the amount of fecal coliform
content ranged from 50,000 to 80,000 most probable number (MPN)/ml when what DENR
Administrative Order No. 34-90 prescribed as a safe level for bathing and other forms of
contact recreational activities, or the "SB" level, is one not exceeding 200 MPN/100 ml.4
Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf
of other petitioners, testified about the MWSS’ efforts to reduce pollution along the Manila
Bay through the Manila Second Sewerage Project. For its part, the Philippine Ports Authority
(PPA) presented, as part of its evidence, its memorandum circulars on the study being
conducted on ship-generated waste treatment and disposal, and its Linis Dagat (Clean the
Ocean) project for the cleaning of wastes accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision5 in favor of respondents. The
dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the
abovenamed defendant-government agencies, jointly and solidarily, to clean up and
rehabilitate Manila Bay and restore its waters to SB classification to make it fit for
swimming, skin-diving and other forms of contact recreation. To attain this, defendant-
agencies, with defendant DENR as the lead agency, are directed, within six (6) months from
receipt hereof, to act and perform their respective duties by devising a consolidated,
coordinated and concerted scheme of action for the rehabilitation and restoration of the
bay.
In particular:
Defendant MWSS is directed to install, operate and maintain adequate [sewerage]
treatment facilities in strategic places under its jurisdiction and increase their capacities.
Defendant LWUA, to see to it that the water districts under its wings, provide, construct and
operate sewage facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and
maintain waste facilities to rid the bay of toxic and hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes
but also of other solid and liquid wastes from docking vessels that contribute to the
pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary
landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage
disposal system such as re-use or recycling of wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the
marine life in Manila Bay and restock its waters with indigenous fish and other aquatic
animals.
Defendant DBM, to provide and set aside an adequate budget solely for the purpose of
cleaning up and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the
free flow of waters to the bay. These nuisances discharge solid and liquid wastes which
eventually end up in Manila Bay. As the construction and engineering arm of the
government, DPWH is ordered to actively participate in removing debris, such as carcass of
sunken vessels, and other non-biodegradable garbage in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic and sludge
companies and require them to have proper facilities for the treatment and disposal of fecal
sludge and sewage coming from septic tanks.
Defendant DECS, to inculcate in the minds and hearts of the people through education the
importance of preserving and protecting the environment.
Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the
Manila Bay from all forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of
Appeals (CA) individual Notices of Appeal which were eventually consolidated and docketed
as CA-G.R. CV No. 76528.
On the other hand, the DENR, Department of Public Works and Highways (DPWH),
Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard (PCG),
Philippine National Police (PNP) Maritime Group, and five other executive departments and
agencies filed directly with this Court a petition for review under Rule 45. The Court, in a
Resolution of December 9, 2002, sent the said petition to the CA for consolidation with the
consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of
the Environment Code (PD 1152) relate only to the cleaning of specific pollution incidents
and do not cover cleaning in general. And apart from raising concerns about the lack of
funds appropriated for cleaning purposes, petitioners also asserted that the cleaning of the
Manila Bay is not a ministerial act which can be compelled by mandamus.
The CA Sustained the RTC
By a Decision6 of September 28, 2005, the CA denied petitioners’ appeal and affirmed the
Decision of the RTC in toto, stressing that the trial court’s decision did not require
petitioners to do tasks outside of their usual basic functions under existing laws.7
Petitioners are now before this Court praying for the allowance of their Rule 45 petition on
the following ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE
HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURT’S DECISION DECLARING THAT
SECTION 20 OF [PD] 1152 REQUIRES CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL
POLLUTANTS SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC
POLLUTION INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL
II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF
PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the
headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in
general or are they limited only to the cleanup of specific pollution incidents? And second,
can petitioners be compelled by mandamus to clean up and rehabilitate the Manila Bay?
On August 12, 2008, the Court conducted and heard the parties on oral arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of mandamus under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus

Generally, the writ of mandamus lies to require the execution of a ministerial duty.8 A
ministerial duty is one that "requires neither the exercise of official discretion nor
judgment."9 It connotes an act in which nothing is left to the discretion of the person
executing it. It is a "simple, definite duty arising under conditions admitted or proved to
exist and imposed by law."10 Mandamus is available to compel action, when refused, on
matters involving discretion, but not to direct the exercise of judgment or discretion one
way or the other.
Petitioners maintain that the MMDA’s duty to take measures and maintain adequate solid
waste and liquid disposal systems necessarily involves policy evaluation and the exercise of
judgment on the part of the agency concerned. They argue that the MMDA, in carrying out
its mandate, has to make decisions, including choosing where a landfill should be located by
undertaking feasibility studies and cost estimates, all of which entail the exercise of
discretion.
Respondents, on the other hand, counter that the statutory command is clear and that
petitioners’ duty to comply with and act according to the clear mandate of the law does not
require the exercise of discretion. According to respondents, petitioners, the MMDA in
particular, are without discretion, for example, to choose which bodies of water they are to
clean up, or which discharge or spill they are to contain. By the same token, respondents
maintain that petitioners are bereft of discretion on whether or not to alleviate the problem
of solid and liquid waste disposal; in other words, it is the MMDA’s ministerial duty to attend
to such services.
We agree with respondents.
First off, we wish to state that petitioners’ obligation to perform their duties as defined by
law, on one hand, and how they are to carry out such duties, on the other, are two different
concepts. While the implementation of the MMDA’s mandated tasks may entail a decision-
making process, the enforcement of the law or the very act of doing what the law exacts to
be done is ministerial in nature and may be compelled by mandamus. We said so in Social
Justice Society v. Atienza11 in which the Court directed the City of Manila to enforce, as a
matter of ministerial duty, its Ordinance No. 8027 directing the three big local oil players to
cease and desist from operating their business in the so-called "Pandacan Terminals" within
six months from the effectivity of the ordinance. But to illustrate with respect to the instant
case, the MMDA’s duty to put up an adequate and appropriate sanitary landfill and solid
waste and liquid disposal as well as other alternative garbage disposal systems is ministerial,
its duty being a statutory imposition. The MMDA’s duty in this regard is spelled out in Sec.
3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section defines and delineates
the scope of the MMDA’s waste disposal services to include:
Solid waste disposal and management which include formulation and implementation of
policies, standards, programs and projects for proper and sanitary waste disposal. It shall
likewise include the establishment and operation of sanitary land fill and related facilities
and the implementation of other alternative programs intended to reduce, reuse and
recycle solid waste. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management
Act (RA 9003) which prescribes the minimum criteria for the establishment of sanitary
landfills and Sec. 42 which provides the minimum operating requirements that each site
operator shall maintain in the operation of a sanitary landfill. Complementing Sec. 41 are
Secs. 36 and 37 of RA 9003,12 enjoining the MMDA and local government units, among
others, after the effectivity of the law on February 15, 2001, from using and operating open
dumps for solid waste and disallowing, five years after such effectivity, the use of controlled
dumps.
The MMDA’s duty in the area of solid waste disposal, as may be noted, is set forth not only
in the Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of
putting up a proper waste disposal system cannot be characterized as discretionary, for, as
earlier stated, discretion presupposes the power or right given by law to public functionaries
to act officially according to their judgment or conscience.13 A discretionary duty is one that
"allows a person to exercise judgment and choose to perform or not to perform."14 Any
suggestion that the MMDA has the option whether or not to perform its solid waste
disposal-related duties ought to be dismissed for want of legal basis.
A perusal of other petitioners’ respective charters or like enabling statutes and pertinent
laws would yield this conclusion: these government agencies are enjoined, as a matter of
statutory obligation, to perform certain functions relating directly or indirectly to the
cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are precluded
from choosing not to perform these duties. Consider:
(1) The DENR, under Executive Order No. (EO) 192,15 is the primary agency responsible for
the conservation, management, development, and proper use of the country’s environment
and natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the
other hand, designates the DENR as the primary government agency responsible for its
enforcement and implementation, more particularly over all aspects of water quality
management. On water pollution, the DENR, under the Act’s Sec. 19(k), exercises
jurisdiction "over all aspects of water pollution, determine[s] its location, magnitude, extent,
severity, causes and effects and other pertinent information on pollution, and [takes]
measures, using available methods and technologies, to prevent and abate such pollution."
The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report,
an Integrated Water Quality Management Framework, and a 10-year Water Quality
Management Area Action Plan which is nationwide in scope covering the Manila Bay and
adjoining areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.––The [DENR] shall be the primary government agency responsible for
the implementation and enforcement of this Act x x x unless otherwise provided herein. As
such, it shall have the following functions, powers and responsibilities:
a) Prepare a National Water Quality Status report within twenty-four (24) months from the
effectivity of this Act: Provided, That the Department shall thereafter review or revise and
publish annually, or as the need arises, said report;
b) Prepare an Integrated Water Quality Management Framework within twelve (12) months
following the completion of the status report;
c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months
following the completion of the framework for each designated water management area.
Such action plan shall be reviewed by the water quality management area governing board
every five (5) years or as need arises.
The DENR has prepared the status report for the period 2001 to 2005 and is in the process
of completing the preparation of the Integrated Water Quality Management Framework.16
Within twelve (12) months thereafter, it has to submit a final Water Quality Management
Area Action Plan.17 Again, like the MMDA, the DENR should be made to accomplish the
tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR,
with the assistance of and in partnership with various government agencies and non-
government organizations, has completed, as of December 2005, the final draft of a
comprehensive action plan with estimated budget and time frame, denominated as
Operation Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration, and
rehabilitation of the Manila Bay.
The completion of the said action plan and even the implementation of some of its phases
should more than ever prod the concerned agencies to fast track what are assigned them
under existing laws.
(2) The MWSS, under Sec. 3 of RA 6234,18 is vested with jurisdiction, supervision, and
control over all waterworks and sewerage systems in the territory comprising what is now
the cities of Metro Manila and several towns of the provinces of Rizal and Cavite, and
charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the
proper sanitation and other uses of the cities and towns comprising the System; x x x
(3) The LWUA under PD 198 has the power of supervision and control over local water
districts. It can prescribe the minimum standards and regulations for the operations of these
districts and shall monitor and evaluate local water standards. The LWUA can direct these
districts to construct, operate, and furnish facilities and services for the collection,
treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275,
the LWUA, as attached agency of the DPWH, is tasked with providing sewerage and
sanitation facilities, inclusive of the setting up of efficient and safe collection, treatment, and
sewage disposal system in the different parts of the country.19 In relation to the instant
petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna,
Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO
292),20 is designated as the agency tasked to promulgate and enforce all laws and issuances
respecting the conservation and proper utilization of agricultural and fishery resources.
Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA 8550), is, in
coordination with local government units (LGUs) and other concerned sectors, in charge of
establishing a monitoring, control, and surveillance system to ensure that fisheries and
aquatic resources in Philippine waters are judiciously utilized and managed on a sustainable
basis.21 Likewise under RA 9275, the DA is charged with coordinating with the PCG and
DENR for the enforcement of water quality standards in marine waters.22 More specifically,
its Bureau of Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall
primarily be responsible for the prevention and control of water pollution for the
development, management, and conservation of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of the national government, is
tasked under EO 29223 to provide integrated planning, design, and construction services
for, among others, flood control and water resource development systems in accordance
with national development objectives and approved government plans and specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-
wide services relating to "flood control and sewerage management which include the
formulation and implementation of policies, standards, programs and projects for an
integrated flood control, drainage and sewerage system."
On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and
MMDA, whereby MMDA was made the agency primarily responsible for flood control in
Metro Manila. For the rest of the country, DPWH shall remain as the implementing agency
for flood control services. The mandate of the MMDA and DPWH on flood control and
drainage services shall include the removal of structures, constructions, and encroachments
built along rivers, waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and
other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of
1974, and Sec. 6 of PD 979,24 or the Marine Pollution Decree of 1976, shall have the
primary responsibility of enforcing laws, rules, and regulations governing marine pollution
within the territorial waters of the Philippines. It shall promulgate its own rules and
regulations in accordance with the national rules and policies set by the National Pollution
Control Commission upon consultation with the latter for the effective implementation and
enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend violators who:
a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any
other floating craft, or other man-made structures at sea, by any method, means or manner,
into or upon the territorial and inland navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged,
or deposited either from or out of any ship, barge, or other floating craft or vessel of any
kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse
matter of any kind or description whatever other than that flowing from streets and sewers
and passing therefrom in a liquid state into tributary of any navigable water from which the
same shall float or be washed into such navigable water; and
c. deposit x x x material of any kind in any place on the bank of any navigable water or on
the bank of any tributary of any navigable water, where the same shall be liable to be
washed into such navigable water, either by ordinary or high tides, or by storms or floods, or
otherwise, whereby navigation shall or may be impeded or obstructed or increase the level
of pollution of such water.
(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of
1990 was signed into law on December 13, 1990, the PNP Maritime Group was tasked to
"perform all police functions over the Philippine territorial waters and rivers." Under Sec. 86,
RA 6975, the police functions of the PCG shall be taken over by the PNP when the latter
acquires the capability to perform such functions. Since the PNP Maritime Group has not yet
attained the capability to assume and perform the police functions of PCG over marine
pollution, the PCG and PNP Maritime Group shall coordinate with regard to the
enforcement of laws, rules, and regulations governing marine pollution within the territorial
waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine
Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were authorized to
enforce said law and other fishery laws, rules, and regulations.25
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated "to establish, develop,
regulate, manage and operate a rationalized national port system in support of trade and
national development."26 Moreover, Sec. 6-c of EO 513 states that the PPA has police
authority within the ports administered by it as may be necessary to carry out its powers
and functions and attain its purposes and objectives, without prejudice to the exercise of
the functions of the Bureau of Customs and other law enforcement bodies within the area.
Such police authority shall include the following:
xxxx
b) To regulate the entry to, exit from, and movement within the port, of persons and
vehicles, as well as movement within the port of watercraft.27
Lastly, as a member of the International Marine Organization and a signatory to the
International Convention for the Prevention of Pollution from Ships, as amended by
MARPOL 73/78,28 the Philippines, through the PPA, must ensure the provision of adequate
reception facilities at ports and terminals for the reception of sewage from the ships docking
in Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to
prevent the discharge and dumping of solid and liquid wastes and other ship-generated
wastes into the Manila Bay waters from vessels docked at ports and apprehend the
violators. When the vessels are not docked at ports but within Philippine territorial waters,
it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary
landfill and solid waste and liquid disposal system as well as other alternative garbage
disposal systems. It is primarily responsible for the implementation and enforcement of the
provisions of RA 9003, which would necessary include its penal provisions, within its area of
jurisdiction.29
Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated
are dumping of waste matters in public places, such as roads, canals or esteros, open
burning of solid waste, squatting in open dumps and landfills, open dumping, burying of
biodegradable or non- biodegradable materials in flood-prone areas, establishment or
operation of open dumps as enjoined in RA 9003, and operation of waste management
facilities without an environmental compliance certificate.
Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or
demolition may be allowed "when persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places
such as sidewalks, roads, parks and playgrounds." The MMDA, as lead agency, in
coordination with the DPWH, LGUs, and concerned agencies, can dismantle and remove all
structures, constructions, and other encroachments built in breach of RA 7279 and other
pertinent laws along the rivers, waterways, and esteros in Metro Manila. With respect to
rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that
discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct the
concerned LGUs to implement the demolition and removal of such structures, constructions,
and other encroachments built in violation of RA 7279 and other applicable laws in
coordination with the DPWH and concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is
tasked to promulgate rules and regulations for the establishment of waste disposal areas
that affect the source of a water supply or a reservoir for domestic or municipal use. And
under Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH, and other
concerned agencies, shall formulate guidelines and standards for the collection, treatment,
and disposal of sewage and the establishment and operation of a centralized sewage
treatment system. In areas not considered as highly urbanized cities, septage or a mix
sewerage-septage management system shall be employed.
In accordance with Sec. 7230 of PD 856, the Code of Sanitation of the Philippines, and Sec.
5.1.131 of Chapter XVII of its implementing rules, the DOH is also ordered to ensure the
regulation and monitoring of the proper disposal of wastes by private sludge companies
through the strict enforcement of the requirement to obtain an environmental sanitation
clearance of sludge collection treatment and disposal before these companies are issued
their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine Environment Code (PD
1152), is mandated to integrate subjects on environmental education in its school curricula
at all levels.32 Under Sec. 118 of RA 8550, the DepEd, in collaboration with the DA,
Commission on Higher Education, and Philippine Information Agency, shall launch and
pursue a nationwide educational campaign to promote the development, management,
conservation, and proper use of the environment. Under the Ecological Solid Waste
Management Act (RA 9003), on the other hand, it is directed to strengthen the integration
of environmental concerns in school curricula at all levels, with an emphasis on waste
management principles.33
(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of
the Administrative Code of 1987 to ensure the efficient and sound utilization of government
funds and revenues so as to effectively achieve the country’s development objectives.34
One of the country’s development objectives is enshrined in RA 9275 or the Philippine Clean
Water Act of 2004. This law stresses that the State shall pursue a policy of economic growth
in a manner consistent with the protection, preservation, and revival of the quality of our
fresh, brackish, and marine waters. It also provides that it is the policy of the government,
among others, to streamline processes and procedures in the prevention, control, and
abatement of pollution mechanisms for the protection of water resources; to promote
environmental strategies and use of appropriate economic instruments and of control
mechanisms for the protection of water resources; to formulate a holistic national program
of water quality management that recognizes that issues related to this management
cannot be separated from concerns about water sources and ecological protection, water
supply, public health, and quality of life; and to provide a comprehensive management
program for water pollution focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble
objectives of RA 9275 in line with the country’s development objectives.
All told, the aforementioned enabling laws and issuances are in themselves clear,
categorical, and complete as to what are the obligations and mandate of each
agency/petitioner under the law. We need not belabor the issue that their tasks include the
cleanup of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass
the cleanup of water pollution in general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.––Where the quality of water has deteriorated to a
degree where its state will adversely affect its best usage, the government agencies
concerned shall take such measures as may be necessary to upgrade the quality of such
water to meet the prescribed water quality standards.
Section 20. Clean-up Operations.––It shall be the responsibility of the polluter to contain,
remove and clean-up water pollution incidents at his own expense. In case of his failure to
do so, the government agencies concerned shall undertake containment, removal and
clean-up operations and expenses incurred in said operations shall be charged against the
persons and/or entities responsible for such pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, o, amended the
counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152
continues, however, to be operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.––Notwithstanding the provisions of Sections 15 and 26 hereof,
any person who causes pollution in or pollutes water bodies in excess of the applicable and
prevailing standards shall be responsible to contain, remove and clean up any pollution
incident at his own expense to the extent that the same water bodies have been rendered
unfit for utilization and beneficial use: Provided, That in the event emergency cleanup
operations are necessary and the polluter fails to immediately undertake the same, the
[DENR] in coordination with other government agencies concerned, shall undertake
containment, removal and cleanup operations. Expenses incurred in said operations shall be
reimbursed by the persons found to have caused such pollution under proper administrative
determination x x x. Reimbursements of the cost incurred shall be made to the Water
Quality Management Fund or to such other funds where said disbursements were sourced.
As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent
than real since the amendment, insofar as it is relevant to this case, merely consists in the
designation of the DENR as lead agency in the cleanup operations.
Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern
themselves only with the matter of cleaning up in specific pollution incidents, as opposed to
cleanup in general. They aver that the twin provisions would have to be read alongside the
succeeding Sec. 62(g) and (h), which defines the terms "cleanup operations" and "accidental
spills," as follows:
g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged
or spilled in water to restore it to pre-spill condition.
h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result
from accidents such as collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the
government agencies concerned to undertake containment, removal, and cleaning
operations of a specific polluted portion or portions of the body of water concerned. They
maintain that the application of said Sec. 20 is limited only to "water pollution incidents,"
which are situations that presuppose the occurrence of specific, isolated pollution events
requiring the corresponding containment, removal, and cleaning operations. Pushing the
point further, they argue that the aforequoted Sec. 62(g) requires "cleanup operations" to
restore the body of water to pre-spill condition, which means that there must have been a
specific incident of either intentional or accidental spillage of oil or other hazardous
substances, as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as
delimiting the application of Sec. 20 to the containment, removal, and cleanup operations
for accidental spills only. Contrary to petitioners’ posture, respondents assert that Sec.
62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain that without its
Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating from the day-to-
day operations of businesses around the Manila Bay and other sources of pollution that
slowly accumulated in the bay. Respondents, however, emphasize that Sec. 62(g), far from
being a delimiting provision, in fact even enlarged the operational scope of Sec. 20, by
including accidental spills as among the water pollution incidents contemplated in Sec. 17 in
relation to Sec. 20 of PD 1152.
To respondents, petitioners’ parochial view on environmental issues, coupled with their
narrow reading of their respective mandated roles, has contributed to the worsening water
quality of the Manila Bay. Assuming, respondents assert, that petitioners are correct in
saying that the cleanup coverage of Sec. 20 of PD 1152 is constricted by the definition of the
phrase "cleanup operations" embodied in Sec. 62(g), Sec. 17 is not hobbled by such limiting
definition. As pointed out, the phrases "cleanup operations" and "accidental spills" do not
appear in said Sec. 17, not even in the chapter where said section is found.
Respondents are correct. For one thing, said Sec. 17 does not in any way state that the
government agencies concerned ought to confine themselves to the containment, removal,
and cleaning operations when a specific pollution incident occurs. On the contrary, Sec. 17
requires them to act even in the absence of a specific pollution incident, as long as water
quality "has deteriorated to a degree where its state will adversely affect its best usage."
This section, to stress, commands concerned government agencies, when appropriate, "to
take such measures as may be necessary to meet the prescribed water quality standards." In
fine, the underlying duty to upgrade the quality of water is not conditional on the
occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is
properly applicable to a specific situation in which the pollution is caused by polluters who
fail to clean up the mess they left behind. In such instance, the concerned government
agencies shall undertake the cleanup work for the polluters’ account. Petitioners’ assertion,
that they have to perform cleanup operations in the Manila Bay only when there is a water
pollution incident and the erring polluters do not undertake the containment, removal, and
cleanup operations, is quite off mark. As earlier discussed, the complementary Sec. 17 of the
Environment Code comes into play and the specific duties of the agencies to clean up come
in even if there are no pollution incidents staring at them. Petitioners, thus, cannot plausibly
invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their
cleanup mandate depends on the happening of a specific pollution incident. In this regard,
what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once
valid as it is practical. The appellate court wrote: "PD 1152 aims to introduce a
comprehensive program of environmental protection and management. This is better
served by making Secs. 17 & 20 of general application rather than limiting them to specific
pollution incidents."35
Granting arguendo that petitioners’ position thus described vis-à-vis the implementation of
Sec. 20 is correct, they seem to have overlooked the fact that the pollution of the Manila
Bay is of such magnitude and scope that it is well-nigh impossible to draw the line between
a specific and a general pollution incident. And such impossibility extends to pinpointing
with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152 mentions
"water pollution incidents" which may be caused by polluters in the waters of the Manila
Bay itself or by polluters in adjoining lands and in water bodies or waterways that empty
into the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to "any person who
causes pollution in or pollutes water bodies," which may refer to an individual or an
establishment that pollutes the land mass near the Manila Bay or the waterways, such that
the contaminants eventually end up in the bay. In this situation, the water pollution
incidents are so numerous and involve nameless and faceless polluters that they can validly
be categorized as beyond the specific pollution incident level.
Not to be ignored of course is the reality that the government agencies concerned are so
undermanned that it would be almost impossible to apprehend the numerous polluters of
the Manila Bay. It may perhaps not be amiss to say that the apprehension, if any, of the
Manila Bay polluters has been few and far between. Hence, practically nobody has been
required to contain, remove, or clean up a given water pollution incident. In this kind of
setting, it behooves the Government to step in and undertake cleanup operations. Thus,
Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a
general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of
the long-term solution. The preservation of the water quality of the bay after the
rehabilitation process is as important as the cleaning phase. It is imperative then that the
wastes and contaminants found in the rivers, inland bays, and other bodies of water be
stopped from reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile,
cosmetic exercise, for, in no time at all, the Manila Bay water quality would again
deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and other
relevant laws. It thus behooves the Court to put the heads of the petitioner-department-
agencies and the bureaus and offices under them on continuing notice about, and to enjoin
them to perform, their mandates and duties towards cleaning up the Manila Bay and
preserving the quality of its water to the ideal level. Under what other judicial discipline
describes as "continuing mandamus,"36 the Court may, under extraordinary circumstances,
issue directives with the end in view of ensuring that its decision would not be set to naught
by administrative inaction or indifference. In India, the doctrine of continuing mandamus
was used to enforce directives of the court to clean up the length of the Ganges River from
industrial and municipal pollution.37
The Court can take judicial notice of the presence of shanties and other unauthorized
structures which do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the
National Capital Region (NCR) (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-
Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and
connecting waterways, river banks, and esteros which discharge their waters, with all the
accompanying filth, dirt, and garbage, into the major rivers and eventually the Manila Bay. If
there is one factor responsible for the pollution of the major river systems and the Manila
Bay, these unauthorized structures would be on top of the list. And if the issue of illegal or
unauthorized structures is not seriously addressed with sustained resolve, then practically
all efforts to cleanse these important bodies of water would be for naught. The DENR
Secretary said as much.38
Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD
1067 or the Water Code,39 which prohibits the building of structures within a given length
along banks of rivers and other waterways. Art. 51 reads:
The banks of rivers and streams and the shores of the seas and lakes throughout their entire
length and within a zone of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along their margins, are subject to
the easement of public use in the interest of recreation, navigation, floatage, fishing and
salvage. No person shall be allowed to stay in this zone longer than what is necessary for
recreation, navigation, floatage, fishing or salvage or to build structures of any kind.
(Emphasis added.)
Judicial notice may likewise be taken of factories and other industrial establishments
standing along or near the banks of the Pasig River, other major rivers, and connecting
waterways. But while they may not be treated as unauthorized constructions, some of these
establishments undoubtedly contribute to the pollution of the Pasig River and waterways.
The DILG and the concerned LGUs, have, accordingly, the duty to see to it that non-
complying industrial establishments set up, within a reasonable period, the necessary waste
water treatment facilities and infrastructure to prevent their industrial discharge, including
their sewage waters, from flowing into the Pasig River, other major rivers, and connecting
waterways. After such period, non-complying establishments shall be shut down or asked to
transfer their operations.
At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to
comply with their statutory tasks, we cite the Asian Development Bank-commissioned study
on the garbage problem in Metro Manila, the results of which are embodied in the The
Garbage Book. As there reported, the garbage crisis in the metropolitan area is as alarming
as it is shocking. Some highlights of the report:
1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and
Rodriquez dumpsites - generate an alarming quantity of lead and leachate or liquid run-off.
Leachate are toxic liquids that flow along the surface and seep into the earth and poison the
surface and groundwater that are used for drinking, aquatic life, and the environment.
2. The high level of fecal coliform confirms the presence of a large amount of human waste
in the dump sites and surrounding areas, which is presumably generated by households that
lack alternatives to sanitation. To say that Manila Bay needs rehabilitation is an
understatement.
3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains
of pathogens seeps untreated into ground water and runs into the Marikina and Pasig River
systems and Manila Bay.40
Given the above perspective, sufficient sanitary landfills should now more than ever be
established as prescribed by the Ecological Solid Waste Management Act (RA 9003).
Particular note should be taken of the blatant violations by some LGUs and possibly the
MMDA of Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.––No open dumps shall
be established and operated, nor any practice or disposal of solid waste by any person,
including LGUs which [constitute] the use of open dumps for solid waste, be allowed after
the effectivity of this Act: Provided, further that no controlled dumps shall be allowed (5)
years following the effectivity of this Act. (Emphasis added.)
RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years
which ended on February 21, 2006 has come and gone, but no single sanitary landfill which
strictly complies with the prescribed standards under RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering,
dumping of waste matters in roads, canals, esteros, and other public places, operation of
open dumps, open burning of solid waste, and the like. Some sludge companies which do
not have proper disposal facilities simply discharge sludge into the Metro Manila sewerage
system that ends up in the Manila Bay. Equally unabated are violations of Sec. 27 of RA
9275, which enjoins the pollution of water bodies, groundwater pollution, disposal of
infectious wastes from vessels, and unauthorized transport or dumping into sea waters of
sewage or solid waste and of Secs. 4 and 102 of RA 8550 which proscribes the introduction
by human or machine of substances to the aquatic environment including
"dumping/disposal of waste and other marine litters, discharge of petroleum or residual
products of petroleum of carbonaceous materials/substances [and other] radioactive,
noxious or harmful liquid, gaseous or solid substances, from any water, land or air transport
or other human-made structure."
In the light of the ongoing environmental degradation, the Court wishes to emphasize the
extreme necessity for all concerned executive departments and agencies to immediately act
and discharge their respective official duties and obligations. Indeed, time is of the essence;
hence, there is a need to set timetables for the performance and completion of the tasks,
some of them as defined for them by law and the nature of their respective offices and
mandates.
The importance of the Manila Bay as a sea resource, playground, and as a historical
landmark cannot be over-emphasized. It is not yet too late in the day to restore the Manila
Bay to its former splendor and bring back the plants and sea life that once thrived in its blue
waters. But the tasks ahead, daunting as they may be, could only be accomplished if those
mandated, with the help and cooperation of all civic-minded individuals, would put their
minds to these tasks and take responsibility. This means that the State, through petitioners,
has to take the lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend
their limitations, real or imaginary, and buckle down to work before the problem at hand
becomes unmanageable. Thus, we must reiterate that different government agencies and
instrumentalities cannot shirk from their mandates; they must perform their basic functions
in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners’ hiding
behind two untenable claims: (1) that there ought to be a specific pollution incident before
they are required to act; and (2) that the cleanup of the bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste
management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly
provides that the State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and
healthful ecology need not even be written in the Constitution for it is assumed, like other
civil and political rights guaranteed in the Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental importance with intergenerational
implications.41 Even assuming the absence of a categorical legal provision specifically
prodding petitioners to clean up the bay, they and the men and women representing them
cannot escape their obligation to future generations of Filipinos to keep the waters of the
Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the
trust reposed in them.
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R.
CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil
Case No. 1851-99 are AFFIRMED but with MODIFICATIONS in view of subsequent
developments or supervening events in the case. The fallo of the RTC Decision shall now
read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-
government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and
maintain its waters to SB level (Class B sea waters per Water Classification Tables under
DENR Administrative Order No. 34 [1990]) to make them fit for swimming, skin-diving, and
other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for
the conservation, management, development, and proper use of the country’s environment
and natural resources, and Sec. 19 of RA 9275, designating the DENR as the primary
government agency responsible for its enforcement and implementation, the DENR is
directed to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the
rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time.
It is ordered to call regular coordination meetings with concerned government departments
and agencies to ensure the successful implementation of the aforesaid plan of action in
accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25
of the Local Government Code of 1991,42 the DILG, in exercising the President’s power of
general supervision and its duty to promulgate guidelines in establishing waste management
programs under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all LGUs
in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all
factories, commercial establishments, and private homes along the banks of the major river
systems in their respective areas of jurisdiction, such as but not limited to the Pasig-
Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers
and waterways that eventually discharge water into the Manila Bay; and the lands abutting
the bay, to determine whether they have wastewater treatment facilities or hygienic septic
tanks as prescribed by existing laws, ordinances, and rules and regulations. If none be found,
these LGUs shall be ordered to require non-complying establishments and homes to set up
said facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage
water, and human wastes from flowing into these rivers, waterways, esteros, and the
Manila Bay, under pain of closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275,43 the MWSS is directed to provide, install, operate,
and maintain the necessary adequate waste water treatment facilities in Metro Manila,
Rizal, and Cavite where needed at the earliest possible time.
(4) Pursuant to RA 9275,44 the LWUA, through the local water districts and in coordination
with the DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation
facilities and the efficient and safe collection, treatment, and disposal of sewage in the
provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest
possible time.
(5) Pursuant to Sec. 65 of RA 8550,45 the DA, through the BFAR, is ordered to improve and
restore the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro
Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using
recognized methods, the fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in
accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend
violators of PD 979, RA 8550, and other existing laws and regulations designed to prevent
marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 51346 and the International Convention for the
Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such measures
to prevent the discharge and dumping of solid and liquid wastes and other ship-generated
wastes into the Manila Bay waters from vessels docked at ports and apprehend the
violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood
control projects and drainage services in Metro Manila, in coordination with the DPWH,
DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development Coordinating
Council (HUDCC), and other agencies, shall dismantle and remove all structures,
constructions, and other encroachments established or built in violation of RA 7279, and
other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote,
Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting
waterways and esteros in Metro Manila. The DPWH, as the principal implementor of
programs and projects for flood control services in the rest of the country more particularly
in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected
LGUs, PNP Maritime Group, HUDCC, and other concerned government agencies, shall
remove and demolish all structures, constructions, and other encroachments built in breach
of RA 7279 and other applicable laws along the Meycauayan-Marilao-Obando (Bulacan)
Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other
rivers, connecting waterways, and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as
prescribed by RA 9003, within a period of one (1) year from finality of this Decision. On
matters within its territorial jurisdiction and in connection with the discharge of its duties on
the maintenance of sanitary landfills and like undertakings, it is also ordered to cause the
apprehension and filing of the appropriate criminal cases against violators of the respective
penal provisions of RA 9003,47 Sec. 27 of RA 9275 (the Clean Water Act), and other existing
laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1)
year from finality of this Decision, determine if all licensed septic and sludge companies
have the proper facilities for the treatment and disposal of fecal sludge and sewage coming
from septic tanks. The DOH shall give the companies, if found to be non-complying, a
reasonable time within which to set up the necessary facilities under pain of cancellation of
its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA 8550, and Sec. 56 of RA 9003,49 the
DepEd shall integrate lessons on pollution prevention, waste management, environmental
protection, and like subjects in the school curricula of all levels to inculcate in the minds and
hearts of students and, through them, their parents and friends, the importance of their
duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila
Bay and the entire Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General
Appropriations Act of 2010 and succeeding years to cover the expenses relating to the
cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with
the country’s development objective to attain economic growth in a manner consistent with
the protection, preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG,
PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of
"continuing mandamus," shall, from finality of this Decision, each submit to the Court a
quarterly progressive report of the activities undertaken in accordance with this Decision.
No costs.
SO ORDERED.
CASE 11: G.R. No. 120095 August 5, 1996
JMM PROMOTION AND MANAGEMENT, INC., and KARY INTERNATIONAL, INC., petitioner,
vs.
HON. COURT OF APPEALS, HON. MA. NIEVES CONFESSOR, then Secretary of the
Department of Labor and Employment, HON. JOSE BRILLANTES, in his capacity as acting
Secretary of the Department of Labor and Employment and HON. FELICISIMO JOSON, in
his capacity as Administrator of the Philippine Overseas Employment
Administration, respondents.
 
KAPUNAN, J.:p
The limits of government regulation under the State's police power are once again at the
vortex of the instant controversy. Assailed is the government's power to control deployment
of female entertainers to Japan by requiring an Artist Record Book (ARB) as a precondition
to the processing by the POEA of any contract for overseas employment. By contending that
the right to overseas employment is a property right within the meaning of the Constitution,
petitioners vigorously aver that deprivation thereof allegedly through the onerous
requirement of an ARB violates the due process clause and constitutes an invalid exercise of
the police power.
The factual antecedents are undisputed.
Following the much-publicized death of Maricris Sioson in 1991, former President Corazon
C. Aquino ordered a total ban against the deployment of performing artists to Japan and
other foreign destinations. The ban was, however, rescinded after leaders of the overseas
employment industry promised to extend full support for a program aimed at removing
kinks in the system of deployment. In its place, the government, through the Secretary of
Labor and Employment, subsequently issued Department Order No. 28, creating the
Entertainment Industry Advisory Council (EIAC), which was tasked with issuing guidelines on
the training, testing certification and deployment of performing artists abroad.
Pursuant to the EIAC's recommendations, 1 the Secretary of Labor, on January 6, 1994, issued
Department Order No. 3 establishing various procedures and requirements for screening
performing artists under a new system of training, testing, certification and deployment of
the former. Performing artists successfully hurdling the test, training and certification
requirement were to be issued an Artist's Record Book (ARB), a necessary prerequisite to
processing of any contract of employment by the POEA. Upon request of the industry,
implementation of the process, originally scheduled for April 1, 1994, was moved to October
1, 1994.
Thereafter, the Department of Labor, following the EIAC's recommendation, issued a series
of orders fine-tuning and implementing the new system. Prominent among these orders
were the following issuances:
1. Department Order No. 3-A, providing for additional guidelines on the training, testing,
certification and deployment of performing artists.
2. Department Order No. 3-B, pertaining to the Artist Record Book (ARB) requirement,
which could be processed only after the artist could show proof of academic and skills
training and has passed the required tests.
3. Department Order No. 3-E, providing the minimum salary a performing artist ought to
received (not less than US$600.00 for those bound for Japan) and the authorized deductions
therefrom.
4. Department Order No. 3-F, providing for the guidelines on the issuance and use of the
ARB by returning performing artists who, unlike new artists, shall only undergo a Special
Orientation Program (shorter than the basic program) although they must pass the
academic test.
In Civil Case No. 95-72750, the Federation of Entertainment Talent Managers of the
Philippines (FETMOP), on January 27, 1995 filed a class suit assailing these department
orders, principally contending that said orders 1) violated the constitutional right to travel;
2) abridged existing contracts for employment; and 3) deprived individual artists of their
licenses without due process of law. FETMOP, likewise, averred that the issuance of the
Artist Record Book (ARB) was discriminatory and illegal and "in gross violation of the
constitutional right... to life liberty and property." Said Federation consequently prayed for
the issuance of a writ of preliminary injunction against the aforestated orders.
On February 2, 1992, JMM Promotion and Management, Inc. Kary International, Inc., herein
petitioners, filed a Motion for Intervention in said civil case, which was granted by the trial
court in an Order dated 15 February, 1995.
However, on February 21, 1995, the trial court issued an Order denying petitioners' prayed
for a writ of preliminary injunction and dismissed the complaint.
On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713 dismissed
the same. Tracing the circumstances which led to the issuance of the ARB requirement and
the assailed Department Order, respondent court concluded that the issuance constituted a
valid exercise by the state of the police power.
We agree.
The latin maxim salus populi est surprema lex embodies the character of the entire
spectrum of public laws aimed at promoting the general welfare of the people under the
State's police power. As an inherent attribute of sovereignty which virtually "extends to all
public needs,"2 this "least limitable"3 of governmental powers grants a wide panoply of
instruments through which the state, as  parens patriae gives effect to a host of its
regulatory powers.
Describing the nature and scope of the police power, Justice Malcolm, in the early case
of Rubi v. Provincial Board of Mindoro4 wrote:
"The police power of the State," one court has said... is a power coextensive with self-
protection, and is not inaptly termed "the law of overruling necessity." It may be said to be
that inherent and plenary power in the state which enables it to prohibit all things hurtful to
the comfort, safety and welfare of society." Carried onward by the current of legislature, the
judiciary rarely attempts to dam the onrushing power of legislative discretion, provided the
purposes of the law do not go beyond the great principles that mean security for the public
welfare or do not arbitrarily interfere with the right of the individual. 5
Thus, police power concerns government enactments which precisely interfere with
personal liberty or property in order to promote the general welfare or the common good.
As the assailed Department Order enjoys a presumed validity, it follows that the burden
rests upon petitioners to demonstrate that the said order, particularly, its ARB requirement,
does not enhance the public welfare or was exercised arbitrarily or unreasonably.
A thorough review of the facts and circumstances leading to the issuance of the assailed
orders compels us to rule that the Artist Record Book requirement and the questioned
Department Order related to its issuance were issued by the Secretary of Labor pursuant to
a valid exercise of the police power.
In 1984, the Philippines emerged as the largest labor sending country in Asia dwarfing the
labor export of countries with mammoth populations such as India and China. According to
the National Statistics Office, this diaspora was augmented annually by over 450,000
documented and clandestine or illegal (undocumented) workers who left the country for
various destinations abroad, lured by higher salaries, better work opportunities and
sometimes better living conditions.
Of the hundreds of thousands of workers who left the country for greener pastures in the
last few years, women composed slightly close to half of those deployed, constituting 47%
between 1987-1991, exceeding this proportion (58%) by the end of 1991, 6 the year former
President Aquino instituted the ban on deployment of performing artists to Japan and other
countries as a result of the gruesome death of Filipino entertainer Maricris Sioson.
It was during the same period that this Court took judicial notice not only of the trend, but
also of the fact that most of our women, a large number employed as domestic helpers and
entertainers, worked under exploitative conditions "marked by physical and personal
abuse."7 Even then, we noted that "[t]he sordid tales of maltreatment suffered by migrant
Filipina workers, even rape and various forms of torture, confirmed by testimonies of
returning workers" compelled "urgent government action." 8
Pursuant to the alarming number of reports that a significant number of Filipina performing
artists ended up as prostitutes abroad (many of whom were beaten, drugged and forced
into prostitution), and following the deaths of number of these women, the government
began instituting measures aimed at deploying only those individuals who met set standards
which would qualify them as legitimate performing artists. In spite of these measures,
however, a number of our countrymen have nonetheless fallen victim to unscrupulous
recruiters, ending up as virtual slaves controlled by foreign crime syndicates and forced into
jobs other than those indicated in their employment contracts. Worse, some of our women
have been forced into prostitution.
Thus, after a number of inadequate and failed accreditation schemes, the Secretary of Labor
issued on August 16, 1993, D.O. No. 28, establishing the Entertainment Industry Advisory
Council (EIAC), the policy advisory body of DOLE on entertainment industry matters. 9 Acting
on the recommendations of the said body, the Secretary of Labor, on January 6, 1994,
issued the assailed orders. These orders embodied EIAC's Resolution No. 1, which called for
guidelines on screening, testing and accrediting performing overseas Filipino artists.
Significantly, as the respondent court noted, petitioners were duly represented in the
EIAC,10 which gave the recommendations on which the ARB and other requirements were
based.
Clearly, the welfare of Filipino performing artists, particularly the women was paramount in
the issuance of Department Order No. 3. Short of a total and absolute ban against the
deployment of performing artists to "high risk" destinations, a measure which would only
drive recruitment further underground, the new scheme at the very least rationalizes the
method of screening performing artists by requiring reasonable educational and artistic
skills from them and limits deployment to only those individuals adequately prepared for
the unpredictable demands of employment as artists abroad. It cannot be gainsaid that this
scheme at least lessens the room for exploitation by unscrupulous individuals and agencies.
Moreover, here or abroad, selection of performing artists is usually accomplished by
auditions, where those deemed unfit are usually weeded out through a process which is
inherently subjective and vulnerable to bias and differences in taste. The ARB requirement
goes one step further, however, attempting to minimize the subjectivity of the process by
defining the minimum skills required from entertainers and performing artists. As the
Solicitor General observed, this should be easily met by experienced artists possessing
merely basic skills. The test are aimed at segregating real artists or performers from those
passing themselves off as such, eager to accept any available job and therefore exposing
themselves to possible exploitation.
As to the other provisions of Department Order No. 3 questioned by petitioners, we see
nothing wrong with the requirements for document and booking confirmation (D.O. 3-C), a
minimum salary scale (D.O. 3-E), or the requirement for registration of returning
performers. The requirement for a venue certificate or other documents evidencing the
place and nature or work allows the government closer monitoring of foreign employers and
helps keep our entertainers away from prostitution fronts and other worksites associated
with unsavory, immoral, illegal or exploitative practices. Parenthetically, none of these
issuances appear to us, by any stretch of the imagination, even remotely unreasonable or
arbitrary. They address a felt need of according greater protection for an oft-exploited
segment of our OCW's. They respond to the industry's demand for clearer and more
practicable rules and guidelines. Many of these provisions were fleshed out following
recommendations by, and after consultations with, the affected sectors and non-
government organizations. On the whole, they are aimed at enhancing the safety and
security of entertainers and artists bound for Japan and other destinations, without stifling
the industry's concerns for expansion and growth.
In any event, apart from the State's police power, the Constitution itself mandates
government to extend the fullest protection to our overseas workers. The basic
constitutional statement on labor, embodied in Section 18 of Article II of the Constitution
provides:
Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights
of workers and promote their welfare.
More emphatically, the social justice provisions on labor of the 1987 Constitution in its first
paragraph states:
The State shall afford full protection to labor, local and overseas, organized and unorganized
and promote full employment and equality of employment opportunities for all.
Obviously, protection to labor does not indicate promotion of employment alone. Under the
welfare and social justice provisions of the Constitution, the promotion of full employment,
while desirable, cannot take a backseat to the government's constitutional duty to provide
mechanisms for the protection of our workforce, local or overseas. As this Court explained
in Philippine Association of Service Exporters (PASEI) v. Drilon,11 in reference to the recurring
problems faced by our overseas workers:
What concerns the Constitution more paramountly is that such an employment be above all,
decent, just, and humane. It is bad enough that the country has to send its sons and
daughters to strange lands because it cannot satisfy their employment needs at home.
Under these circumstances, the Government is duty-adequate protection, personally and
economically, while away from home.
We now go to petitioners' assertion that the police power cannot, nevertheless, abridge the
right of our performing workers to return to work abroad after having earlier qualified under
the old process, because, having previously been accredited, their accreditation became a
"property right," protected by the due process clause. We find this contention untenable.
A profession, trade of calling is a property right within the meaning of our constitutional
guarantees. One cannot be deprived of the right to work and right to make a living because
these rights are property rights, the arbitrary and unwarranted deprivation of which
normally constitutes an actionable wrong.12
Nevertheless, no right is absolute, and the proper regulation of a profession, calling,
business or trade has always been upheld as a legitimate subject of a valid exercise of the
police power by the state particularly when their conduct affects either the execution of
legitimate governmental functions, the preservation of the State, the public health and
welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it
must of course be within the legitimate range of legislative action to define the mode and
manner in which every one may so use of his own property so as not to pose injury to
himself or others.13
In any case, where the liberty curtailed affects at most the rights of property, the
permissible scope of regulatory measures is certainly much
wider.14 To pretend that licensing or accreditation requirements violates the due process
clause is to ignore the settled practice, under the mantle of the police power, of regulating
entry to the practice of various trades or professions. Professionals leaving for abroad are
required to pass rigid written and practical exams before they are deemed fit to practice
their trade. Seamen are required to take tests determining their seamanship. Locally, the
Professional Regulation Commission has began to require previously licensed doctors and
other professionals to furnish documentary proof that they has either re-trained or had
undertaken continuing education courses as a requirement for renewal of their licenses. It is
not claimed that these requirements pose an unwarranted deprivation of a property right
under the due process clause. So long as professionals and other workers meet reasonable
regulatory standards no such deprivation exists.
Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of
the Constitution to support their argument that the government cannot enact the assailed
regulatory measures because they abridge the freedom to contract. In Philippine
Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause of
the Constitution... must yield to the loftier purposes targeted by the government." 15 Equally
important, into every contract is read provisions of existing law, and always, a reservation of
the police power for so long as the agreement deals with a subject impressed with the
public welfare.
A last point. Petitioners suggest that the singling out of entertainers and performing artists
under the assailed department orders constitutes class legislation which violates the equal
protection clause of the Constitution. We do not agree.
The equal protection clause is directed principally against undue favor and individual or class
privilege. It is not intended to prohibit legislation which is limited to the object to which it is
directed or by the territory in which it is to operate. It does not require absolute equality,
but merely that all persons be treated alike under like conditions both as to privileges
conferred and liabilities imposed.16 We have held, time and again, that the equal protection
clause of the Constitution does not forbid classification for so long as such classification is
based on real and substantial differences having a reasonable relation to the subject of the
particular legislation.17 If classification is germane to the purpose of the law, concerns all
members of the class, and applies equally to present and future conditions, the classification
does not violate the equal protection guarantee.
In the case at bar, the challenged Department Order clearly applies to all performing artists
and entertainers destined for jobs abroad. These orders, we stressed hereinfore, further the
Constitutional mandate requiring government to protect our workforce, particularly those
who may be prone to abuse and exploitation as they are beyond the physical reach of
government regulatory agencies. The tragic incidents must somehow stop, but short of
absolutely curtailing the right of these performers and entertainers to work abroad, the
assailed measures enable our government to assume a measure of control.
WHEREFORE, finding no reversible error in the decision sought to be reviewed, petition is
hereby DENIED.
SO ORDERED.
CASE 12: G.R. No. 118295 May 2, 1997
WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the Philippine
Senate and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the
House of Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R.
MORALES, both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC
PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES,
LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as non-
governmental organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ,
AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA,
GLORIA. MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEÑA,
SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE
WEBB, in their respective capacities as members of the Philippine Senate who concurred
in the ratification by the President of the Philippines of the Agreement Establishing the
World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget
and Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his
capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of
Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; and TEOFISTO
T. GUINGONA, in his capacity as Executive Secretary, respondents.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries has revolutionized international
business and economic relations amongst states. It has irreversibly propelled the world
towards trade liberalization and economic globalization. Liberalization, globalization,
deregulation and privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national economies like tariffs, export
subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls.
Finding market niches and becoming the best in specific industries in a market-driven and
export-oriented global scenario are replacing age-old "beggar-thy-neighbor" policies that
unilaterally protect weak and inefficient domestic producers of goods and services. In the
words of Peter Drucker, the well-known management guru, "Increased participation in the
world economy has become the key to domestic economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War,
plans for the establishment of three multilateral institutions — inspired by that grand
political body, the United Nations — were discussed at Dumbarton Oaks and Bretton
Woods. The  first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; the  second, the International
Monetary Fund (IMF) which was to deal with currency problems; and the  third, the
International Trade Organization (ITO), which was to foster order and predictability in world
trade and to minimize unilateral protectionist policies that invite challenge, even retaliation,
from other states. However, for a variety of reasons, including its non-ratification by the
United States, the ITO, unlike the IMF and WB, never took off. What remained was only
GATT — the General Agreement on Tariffs and Trade. GATT was a collection of treaties
governing access to the economies of treaty adherents with no institutionalized body
administering the agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy
Round, the Tokyo Round and the Uruguay Round, the world finally gave birth to that
administering body — the World Trade Organization — with the signing of the "Final Act" in
Marrakesh, Morocco and the ratification of the WTO Agreement by its members. 1
Like many other developing countries, the Philippines joined WTO as a founding member
with the goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra),
of improving "Philippine access to foreign markets, especially its major trading partners,
through the reduction of tariffs on its exports, particularly agricultural and industrial
products." The President also saw in the WTO the opening of "new opportunities for the
services sector . . . , (the reduction of) costs and uncertainty associated with exporting . . . ,
and (the attraction of) more investments into the country." Although the Chief Executive did
not expressly mention it in his letter, the Philippines — and this is of special interest to the
legal profession — will benefit from the WTO system of dispute settlement by judicial
adjudication through the independent WTO settlement bodies called (1) Dispute Settlement
Panels and (2) Appellate Tribunal. Heretofore, trade disputes were settled mainly through
negotiations where solutions were arrived at frequently on the basis of relative bargaining
strengths, and where naturally, weak and underdeveloped countries were at a
disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of Organization, the Ministerial Declarations and Decisions, and the Understanding on
member-countries on the same footing as Filipinos and local products" and (2) that the WTO Commitments in Financial Services are hereby submitted to the Senate for its concurrence
"intrudes, limits and/or impairs" the constitutional powers of both Congress and the pursuant to Section 21, Article VII of the Constitution."
Supreme Court, the instant petition before this Court assails the WTO Agreement for On December 9, 1994, the President of the Philippines certified the necessity of the
violating the mandate of the 1987 Constitution to "develop a self-reliant and independent immediate adoption of P.S. 1083, a resolution entitled "Concurring in the Ratification of the
national economy effectively controlled by Filipinos . . . (to) give preference to qualified Agreement Establishing the World Trade Organization." 5
Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved,
locally produced goods." as it is hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide Organization."6 The text of the WTO Agreement is written on pages 137 et seq. of Volume I
trade liberalization and economic globalization? Does it proscribe Philippine integration into of the 36-volume Uruguay Round of Multilateral Trade Negotiations and includes various
a global economy that is liberalized, deregulated and privatized? These are the main agreements and associated legal instruments (identified in the said Agreement as Annexes
questions raised in this petition for certiorari, prohibition and mandamus under Rule 65 of 1, 2 and 3 thereto and collectively referred to as Multilateral Trade Agreements, for brevity)
the Rules of Court praying (1) for the nullification, on constitutional grounds, of the as follows:
concurrence of the Philippine Senate in the ratification by the President of the Philippines of ANNEX 1
the Agreement Establishing the World Trade Organization (WTO Agreement, for brevity) and Annex 1A: Multilateral Agreement on Trade in Goods
(2) for the prohibition of its implementation and enforcement through the release and General Agreement on Tariffs and Trade 1994
utilization of public funds, the assignment of public officials and employees, as well as the Agreement on Agriculture
use of government properties and resources by respondent-heads of various executive Agreement on the Application of Sanitary and
offices concerned therewith. This concurrence is embodied in Senate Resolution No. 97, Phytosanitary Measures
dated December 14, 1994. Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
The Facts Agreement on Trade-Related Investment Measures
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade Agreement on Implementation of Article VI of he
and Industry (Secretary Navarro, for brevity), representing the Government of the Republic General Agreement on Tariffs and Trade
of the Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of the 1994
Uruguay Round of Multilateral Negotiations (Final Act, for brevity). Agreement on Implementation of Article VII of the
By signing the Final Act,2 Secretary Navarro on behalf of the Republic of the Philippines, General on Tariffs and Trade 1994
agreed: Agreement on Pre-Shipment Inspection
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective Agreement on Rules of Origin
competent authorities, with a view to seeking approval of the Agreement in accordance Agreement on Imports Licensing Procedures
with their procedures; and Agreement on Subsidies and Coordinating
(b) to adopt the Ministerial Declarations and Decisions. Measures
On August 12, 1994, the members of the Philippine Senate received a letter dated August Agreement on Safeguards
11, 1994 from the President of the Philippines, 3 stating among others that "the Uruguay Annex 1B: General Agreement on Trade in Services and Annexes
Round Final Act is hereby submitted to the Senate for its concurrence pursuant to Section Annex 1C: Agreement on Trade-Related Aspects of Intellectual
21, Article VII of the Constitution." Property Rights
On August 13, 1994, the members of the Philippine Senate received another letter from the ANNEX 2
President of the Philippines4 likewise dated August 11, 1994, which stated among others Understanding on Rules and Procedures Governing
that "the Uruguay Round Final Act, the Agreement Establishing the World Trade the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed 7 the Instrument of
Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the
Philippines, after having seen and considered the aforementioned Agreement Establishing
the World Trade Organization and the agreements and associated legal instruments
included in Annexes one (1), two (2) and three (3) of that Agreement which are integral
parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm
the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed
of the Agreement Proper and "the associated legal instruments included in Annexes one (1),
two (2) and three (3) of that Agreement which are integral parts thereof."
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO
Agreement (and its integral annexes aforementioned) but also (1) the Ministerial
Declarations and Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996, 8 the Solicitor General describes these
two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a
wide range of matters, such as measures in favor of least developed countries, notification
procedures, relationship of WTO with the International Monetary Fund (IMF), and
agreements on technical barriers to trade and on dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other things,
standstill or limitations and qualifications of commitments to existing non-conforming
measures, market access, national treatment, and definitions of non-resident supplier of
financial services, commercial presence and new financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on
respondents' comment and petitioners' reply thereto, the Court resolved on December 12,
1995, to give due course to the petition, and the parties thereafter filed their respective
memoranda. The court also requested the Honorable Lilia R. Bautista, the Philippine
Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper,
hereafter referred to as "Bautista Paper," 9 for brevity, (1) providing a historical background
of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy
and (2) the transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties
signed prior to the Philippine adherence to the WTO Agreement, which derogate from
Philippine sovereignty and (2) copies of the multi-volume WTO Agreement and other
documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor General
submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996, he listed the various
"bilateral or multilateral treaties or international instruments involving derogation of
Philippine sovereignty." Petitioners, on the other hand, submitted their Compliance dated
January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the deliberations and
voting leading to the concurrence are estopped from impugning the validity of the
Agreement Establishing the World Trade Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade Organization
contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the
1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization unduly
limit, restrict and impair Philippine sovereignty specifically the legislative power which,
under Sec. 2, Article VI, 1987 Philippine Constitution is "vested in the Congress of the
Philippines";
E. Whether provisions of the Agreement Establishing the World Trade Organization interfere
with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction when they voted for concurrence in the
ratification of the constitutionally-infirm Agreement Establishing the World Trade
Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction when they concurred only in the ratification of
the Agreement Establishing the World Trade Organization, and not with the Presidential
submission which included the Final Act, Ministerial Declaration and Decisions, and the
Understanding on Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents "synthesized the several
issues raised by petitioners into the following": 10
1. Whether or not the provisions of the "Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in Annexes
one (1), two (2) and three (3) of that agreement" cited by petitioners directly contravene or
undermine the letter, spirit and intent of Section 19, Article II and Sections 10 and 12, Article
XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the
exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial power
by this Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate "in the ratification by the President of the
Philippines of the Agreement establishing the World Trade Organization" implied rejection
of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by petitioners, the
Solicitor General has effectively ignored three, namely: (1) whether the petition presents a
political question or is otherwise not justiciable; (2) whether petitioner-members of the
Senate (Wigberto E. Tañada and Anna Dominique Coseteng) are estopped from joining this
suit; and (3) whether the respondent-members of the Senate acted in grave abuse of
discretion when they voted for concurrence in the ratification of the WTO Agreement. The
foregoing notwithstanding, this Court resolved to deal with these three issues thus:
(1) The "political question" issue — being very fundamental and vital, and being a matter
that probes into the very jurisdiction of this Court to hear and decide this case — was
deliberated upon by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the
respondents have effectively waived it by not pursuing it in any of their pleadings; in any
event, this issue, even if ruled in respondents' favor, will not cause the petition's dismissal as
there are petitioners other than the two senators, who are not vulnerable to the defense of
estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will
be taken up as an integral part of the disposition of the four issues raised by the Solicitor
General.
During its deliberations on the case, the Court noted that the respondents did not question
the locus standi of petitioners. Hence, they are also deemed to have waived the benefit of
such issue. They probably realized that grave constitutional issues, expenditures of public
funds and serious international commitments of the nation are involved here, and that
transcendental public interest requires that the substantive issues be met head on and
decided on the merits, rather than skirted or deflected by procedural matters. 11
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED, DOES
THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO
JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE
SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR
IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL
POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON
COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court
Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed
is judicial rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld." 12 Once a "controversy as to the application or
interpretation of a constitutional provision is raised before this Court (as in the instant case),
it becomes a legal issue which the Court is bound by constitutional mandate to decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set
out in the 1987 Constitution, 15 as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial department's duty and power to strike down
grave abuse of discretion on the part of any branch or instrumentality of government
including Congress. It is an innovation in our political law. 16 As explained by former Chief
Justice Roberto Concepcion, 17 "the judiciary is the final arbiter on the question of whether
or not a branch of government or any of its officials has acted without jurisdiction or in
excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on
matters of this nature."
As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress
from or abandon its sacred duty and authority to uphold the Constitution in matters that
involve grave abuse of discretion brought before it in appropriate cases, committed by any
officer, agency, instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or
adequate remedy in the ordinary course of law, we have no hesitation at all in holding that
this petition should be given due course and the vital questions raised therein ruled upon
under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and mandamus are
appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will not
review the wisdom of the decision of the President and the Senate in enlisting the country
into the WTO, or pass upon the merits of trade liberalization as a policy espoused by said
international body. Neither will it rule on the  propriety of the government's economic policy
of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other
import/trade barriers. Rather, it will only exercise its constitutional duty "to determine
whether or not there had been a grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of the Senate in ratifying the WTO Agreement and its three
annexes.
Second Issue: The WTO Agreement
and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating
"economic nationalism" are violated by the so-called "parity provisions" and "national
treatment" clauses scattered in various parts not only of the WTO Agreement and its
annexes but also in the Ministerial Decisions and Declarations and in the Understanding on
Commitments in Financial Services.
Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and
Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES
AND STATE POLICIES
x x x           x x x          x x x
Sec. 19. The State shall develop a self-reliant and independent national economy effectively
controlled by Filipinos.
x x x           x x x          x x x
Article XII
NATIONAL ECONOMY AND PATRIMONY
x x x           x x x          x x x
Sec. 10. . . . The Congress shall enact measures that will encourage the formation and
operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
x x x           x x x          x x x
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials
and locally produced goods, and adopt measures that help make them competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the following
WTO provisions quoted in their memorandum: 19
a) In the area of investment measures related to trade in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994, no Member shall
apply any TRIM that is inconsistent with the provisions of Article II or Article XI of GATT
1994.
2. An illustrative list of TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph I of Article XI of GATT 1994
is contained in the Annex to this Agreement." (Agreement on Trade-Related Investment
Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided for in
paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable
under domestic law or under administrative rulings, or compliance with which is necessary
to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or from any domestic
source, whether specified in terms of particular products, in terms of volume or value of
products, or in terms of proportion of volume or value of its local production; or
(b) that an enterprise's purchases or use of imported products be limited to an amount
related to the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of quantitative
restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are
mandatory or enforceable under domestic laws or under administrative rulings, or
compliance with which is necessary to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local production
that it exports;
(b) the importation by an enterprise of products used in or related to its local production by
restricting its access to foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in terms of
volume or value of products, or in terms of a preparation of volume or value of its local
production. (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round Legal Documents, p. 22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that accorded to
like products of national origin in respect of laws, regulations and requirements affecting
their internal sale, offering for sale, purchase, transportation, distribution or use, the
provisions of this paragraph shall not prevent the application of differential internal
transportation charges which are based exclusively on the economic operation of the means
of transport and not on the nationality of the product." (Article III, GATT 1947, as amended
by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS
82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol.
1, Uruguay Round, Legal Instruments p. 177, emphasis supplied).
(b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no less favourable
than that it accords to its own nationals with regard to the protection of intellectual
property. . . (par. 1 Article 3, Agreement on Trade-Related Aspect of Intellectual Property
rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications
set out therein, each Member shall accord to services and service suppliers of any other
Member, in respect of all measures affecting the supply of services, treatment no less
favourable than it accords to its own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by according to services and service
suppliers of any other Member, either formally suppliers of any other Member, either
formally identical treatment or formally different treatment to that it accords to its own like
services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less
favourable if it modifies the conditions of completion in favour of services or service
suppliers of the Member compared to like services or service suppliers of any other
Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay Round
Legal Instruments, p. 22610 emphasis supplied).
It is petitioners' position that the foregoing "national treatment" and "parity provisions" of
the WTO Agreement "place nationals and products of member countries on the same
footing as Filipinos and local products," in contravention of the "Filipino First" policy of the
Constitution. They allegedly render meaningless the phrase "effectively controlled by
Filipinos." The constitutional conflict becomes more manifest when viewed in the context of
the clear duty imposed on the Philippines as a WTO member to ensure the conformity of its
laws, regulations and administrative procedures with its obligations as provided in the
annexed agreements. 20 Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate the
preferential treatment accorded to Filipino labor, domestic materials and locally produced
goods.
On the other hand, respondents through the Solicitor General counter (1) that such Charter
provisions are not self-executing and merely set out general policies; (2) that these
nationalistic portions of the Constitution invoked by petitioners should not be read in
isolation but should be related to other relevant provisions of Art. XII, particularly Secs. 1
and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with
Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect
developing countries like the Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and state
policies." The counterpart of this article in the 1935 Constitution 21 is called the "basic
political creed of the nation" by Dean Vicente Sinco. 22 These principles in Article II are not
intended to be self-executing principles ready for enforcement through the courts. 23 They
are used by the judiciary as aids or as guides in the exercise of its power of judicial review,
and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan,
Incorporated vs. Morato, 24 the principles and state policies enumerated in Article II and
some sections of Article XII are not "self-executing provisions, the disregard of which can
give rise to a cause of action in the courts. They do not embody judicially enforceable
constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need
legislative enactments to implement the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family)
and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also that these
are merely statements of principles and policies. As such, they are basically not self-
executing, meaning a law should be passed by Congress to clearly define and effectuate
such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles
ready for enforcement through the courts. They were rather directives addressed to the
executive and to the legislature. If the executive and the legislature failed to heed the
directives of the article, the available remedy was not judicial but political. The electorate
could express their displeasure with the failure of the executive and the legislature through
the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board constitutional
principles are sourced from basic considerations of due process and the lack of judicial
authority to wade "into the uncharted ocean of social and economic policy making." Mr.
Justice Florentino P. Feliciano in his concurring opinion in Oposa vs. Factoran,
Jr., 26 explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court, show a more specific
legal right — a right cast in language of a significantly lower order of generality than Article II
(15) of the Constitution — that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can validly render
judgment grating all or part of the relief prayed for. To my mind, the court should be
understood as simply saying that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles found in the Constitution and
the existence of the Philippine Environment Code, and that the trial court should have given
petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings
on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of
action be a specific, operable legal right, rather than a constitutional or statutory policy, for
at least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to
defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back on
the expanded conception of judicial power in the second paragraph of Section 1 of Article
VIII of the Constitution which reads:
Sec. 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.
Economic Nationalism Should Be Read with
Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general
principles relating to the national economy and patrimony, should be read and understood
in relation to the other sections in said article, especially Secs. 1 and 13 thereof which read:
Sec. 1. The goals of the national economy are a more equitable distribution of opportunities,
income, and wealth; a sustained increase in the amount of goods and services produced by
the nation for the benefit of the people; and an expanding productivity as the key to raising
the quality of life for all especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural
development and agrarian reform, through industries that make full and efficient use of
human and natural resources, and which are competitive in both domestic and foreign
markets. However, the State shall protect Filipino enterprises against unfair foreign
competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall
be given optimum opportunity to develop. . . .
xxx xxx xxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals  of national
economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for the
benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos "in the grant of rights,
privileges and concessions covering the national economy and patrimony" 27 and in the use
of "Filipino labor, domestic materials and locally-produced goods"; (2) by mandating the
State to "adopt measures that help make them competitive; 28 and (3) by requiring the State
to "develop a self-reliant and independent national economy effectively controlled by
Filipinos." 29 In similar language, the Constitution takes into account the realities of the
outside world as it requires the pursuit of "a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality ad
reciprocity"; 30 and speaks of industries "which are competitive in both domestic
and  foreign  markets" as well as of the protection of "Filipino enterprises
against unfair  foreign competition and trade practices."
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance
System, et al., 31 this Court held that "Sec. 10, second par., Art. XII of the 1987 Constitution is
a mandatory, positive command which is complete in itself and which needs no further
guidelines or implementing laws or rule for its enforcement. From its very words the
provision does not require any legislation to put it in operation. It is  per se judicially
enforceable." However, as the constitutional provision itself states, it is enforceable only in
regard to "the grants of rights, privileges and concessions covering national economy and
patrimony" and not to every aspect of trade and commerce. It refers to exceptions rather
than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-
executing or not. Rather, the issue is whether, as a rule, there are enough balancing
provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the
WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services,
labor and enterprises, at the same time, it recognizes the need for business exchange with
the rest of the world on the bases of equality and reciprocity and limits protection of Filipino
enterprises only against foreign competition and trade practices that are unfair. 32 In other
words, the Constitution did not intend to pursue an isolationist policy. It did not shut out
foreign investments, goods and services in the development of the Philippine economy.
While the Constitution does not encourage the unlimited entry of foreign goods, services
and investments into the country, it does not prohibit them either. In fact, it allows an
exchange on the basis of equality and reciprocity, frowning only on foreign competition that
is  unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast majority of
its members. Unlike in the UN where major states have permanent seats and veto powers in
the Security Council, in the WTO, decisions are made on the basis of sovereign equality, with
each member's vote equal in weight to that of any other. There is no WTO equivalent of the
UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial
Conference and the General Council shall be taken by the majority of the votes cast, except
in cases of interpretation of the Agreement or waiver of the obligation of a member which
would require three fourths vote. Amendments would require two thirds vote in general.
Amendments to MFN provisions and the Amendments provision will require assent of all
members. Any member may withdraw from the Agreement upon the expiration of six
months from the date of notice of withdrawals. 33
Hence, poor countries can protect their common interests more effectively through the
WTO than through one-on-one negotiations with developed countries. Within the WTO,
developing countries can form powerful blocs to push their economic agenda more
decisively than outside the Organization. This is not merely a matter of practical alliances
but a negotiating strategy rooted in law. Thus, the basic principles underlying the WTO
Agreement recognize the need of developing countries like the Philippines to "share in the
growth in international trade commensurate with the needs of their economic
development." These basic principles are found in the preamble 34 of the WTO Agreement as
follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be
conducted with a view to raising standards of living, ensuring full employment and a large
and steadily growing volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for the optimal use of the
world's resources in accordance with the objective of sustainable development, seeking
both to protect and preserve the environment and to enhance the means for doing so in a
manner consistent with their respective needs and concerns at different levels of economic
development,
Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure a share in the
growth in international trade commensurate with the needs of their economic development,
Being desirous of contributing to these objectives by entering into reciprocal and mutually
advantageous arrangements directed to the substantial reduction of tariffs and other
barriers to trade and to the elimination of discriminatory treatment in international trade
relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral trading
system encompassing the General Agreement on Tariffs and Trade, the results of past trade
liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade
Negotiations,
Determined to preserve the basic principles and to further the objectives underlying this
multilateral trading system, . . . (emphasis supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing
basic principles, the WTO Agreement grants developing countries a more lenient treatment,
giving their domestic industries some protection from the rush of foreign competition. Thus,
with respect to tariffs in general, preferential treatment is given to developing countries in
terms of the amount of tariff reduction and the  period within which the reduction is to be
spread out. Specifically, GATT requires an average tariff reduction rate of 36% for developed
countries to be effected within a  period of six (6) years while developing countries —
including the Philippines — are required to effect an average tariff reduction of only 24%
within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic
support to agricultural products by 20% over six (6) years, as compared to only 13% for
developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to
reduce their budgetary outlays for export subsidy  by 36% and export volumes receiving
export subsidy by 21% within a period of six (6) years. For developing countries, however,
the reduction rate is only two-thirds of that prescribed for developed countries and a
longer  period of ten (10) years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and
trade practices including anti-dumping measures, countervailing measures and safeguards
against import surges. Where local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these measures. There is hardly therefore any basis
for the statement that under the WTO, local industries and enterprises will all be wiped out
and that Filipinos will be deprived of control of the economy. Quite the contrary, the weaker
situations of developing nations like the Philippines have been taken into account; thus,
there would be no basis to say that in joining the WTO, the respondents have gravely
abused their discretion. True, they have made a bold decision to steer the ship of state into
the yet uncharted sea of economic liberalization. But such decision cannot be set aside on
the ground of grave abuse of discretion, simply because we disagree with it or simply
because we believe only in other economic policies. As earlier stated, the Court in taking
jurisdiction of this case will not pass upon the advantages and disadvantages of trade
liberalization as an economic policy. It will only perform its constitutional duty of
determining whether the Senate committed grave abuse of discretion.
Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent national
economy" 35 does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither "economic seclusion" nor "mendicancy in the international
community." As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this
constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean
autarky or economic seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign control of the national
economy, especially in such strategic industries as in the development of natural resources
and public utilities. 36
The WTO reliance on "most favored nation," "national treatment," and "trade without
discrimination" cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on "equality and reciprocity," 37 the fundamental law encourages industries
that are "competitive in both domestic and foreign markets," thereby demonstrating a clear
policy against a sheltered domestic trade environment, but one in favor of the gradual
development of robust industries that can compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to
compete internationally. And given a free trade environment, Filipino entrepreneurs and
managers in Hongkong have demonstrated the Filipino capacity to grow and to prosper
against the best offered under a policy of laissez faire.
Constitution Favors Consumers,
Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or
enterprise, nor does it contain any specific pronouncement that Filipino companies should
be pampered with a total proscription of foreign competition. On the other hand,
respondents claim that WTO/GATT aims to make available to the Filipino consumer the best
goods and services obtainable anywhere in the world at the most reasonable prices.
Consequently, the question boils down to whether WTO/GATT will favor the general welfare
of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to
reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as
promised by its promoters — expand the country's exports and generate more
employment?
Will it bring more prosperity, employment, purchasing power and quality products at the
most reasonable rates to the Filipino public?
The responses to these questions involve "judgment calls" by our policy makers, for which
they are answerable to our people during appropriate electoral exercises. Such questions
and the answers thereto are not subject to judicial pronouncements based on grave abuse
of discretion.
Constitution Designed to Meet
Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted
and ratified in 1987. That does not mean however that the Charter is necessarily flawed in
the sense that its framers might not have anticipated the advent of a borderless world of
business. By the same token, the United Nations was not yet in existence when the 1935
Constitution became effective. Did that necessarily mean that the then Constitution might
not have contemplated a diminution of the absoluteness of sovereignty when the
Philippines signed the UN Charter, thereby effectively surrendering part of its control over
its foreign relations to the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the
vagaries of contemporary events. They should be interpreted to cover even future and
unknown circumstances. It is to the credit of its drafters that a Constitution can withstand
the assaults of bigots and infidels but at the same time bend with the refreshing winds of
change necessitated by unfolding events. As one eminent political law writer and respected
jurist 38 explains:
The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and frame-work only of the edifice that is yet to rise. It is but the core of
the dream that must take shape, not in a twinkling by mandate of our delegates, but slowly
"in the crucible of Filipino minds and hearts," where it will in time develop its sinews and
gradually gather its strength and finally achieve its substance. In fine, the Constitution
cannot, like the goddess Athena, rise full-grown from the brow of the Constitutional
Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society
it seeks to re-structure and march apace with the progress of the race, drawing from the
vicissitudes of history the dynamism and vitality that will keep it, far from becoming a
petrified rule, a pulsing, living law attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed
Agreements." 39 Petitioners maintain that this undertaking "unduly limits, restricts and
impairs Philippine sovereignty, specifically the legislative power which under Sec. 2, Article
VI of the 1987 Philippine Constitution is vested in the Congress of the Philippines. It is an
assault on the sovereign powers of the Philippines because this means that Congress could
not pass legislation that will be good for our national interest and general welfare if such
legislation will not conform with the WTO Agreement, which not only relates to the trade in
goods . . . but also to the flow of investments and money . . . as well as to a whole slew of
agreements on socio-cultural matters . . . 40
More specifically, petitioners claim that said WTO proviso derogates from the power to tax,
which is lodged in the Congress. 41 And while the Constitution allows Congress to authorize
the President to fix tariff rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts, such authority is subject to "specified limits and . . . such limitations
and restrictions" as Congress may provide, 42 as in fact it did under Sec. 401 of the Tariff and
Customs Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners stressed their
arguments on this issue. However, while sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic level, it is however subject to restrictions
and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member
of the family of nations. Unquestionably, the Constitution did not envision a hermit-type
isolation of the country from the rest of the world. In its Declaration of Principles and State
Policies, the Constitution "adopts the generally accepted principles of international law as
part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity, with all nations." 43 By the doctrine of incorporation, the country is
bound by generally accepted principles of international law, which are considered to be
automatically part of our own laws. 44 One of the oldest and most fundamental rules in
international law is  pacta sunt servanda  — international agreements must be performed in
good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties . . . A state which has contracted valid international obligations is
bound to make in its legislations such modifications as may be necessary to ensure the
fulfillment of the obligations undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By
their voluntary act, nations may surrender some aspects of their state power in exchange
for greater benefits granted by or derived from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually covenanted objectives and
benefits, they also commonly agree to limit the exercise of their otherwise absolute rights.
Thus, treaties have been used to record agreements between States concerning such widely
diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the
termination of war, the regulation of conduct of hostilities, the formation of alliances, the
regulation of commercial relations, the settling of claims, the laying down of rules governing
conduct in peace and the establishment of international organizations. 46 The sovereignty of
a state therefore cannot in fact and in reality be considered absolute. Certain restrictions
enter into the picture: (1) limitations imposed by the very nature of membership in the
family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F.
Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism
is over. The age of interdependence is here." 47
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members, it
consented to restrict its sovereign rights under the "concept of sovereignty as auto-
limitation."47-A Under Article 2 of the UN Charter, "(a)ll members shall give the United
Nations every assistance in any action it takes in accordance with the present Charter, and
shall refrain from giving assistance to any state against which the United Nations is taking
preventive or enforcement action." Such assistance includes payment of its corresponding
share not merely in administrative expenses but also in expenditures for the peace-keeping
operations of the organization. In its advisory opinion of July 20, 1961, the International
Court of Justice held that money used by the United Nations Emergency Force in the Middle
East and in the Congo were "expenses of the United Nations" under Article 17, paragraph 2,
of the UN Charter. Hence, all its members must bear their corresponding share in such
expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is
compelled to appropriate funds whether it agrees with such peace-keeping expenses or not.
So too, under Article 105 of the said Charter, the UN and its representatives enjoy
diplomatic privileges and immunities, thereby limiting again the exercise of sovereignty of
members within their own territory. Another example: although "sovereign equality" and
"domestic jurisdiction" of all members are set forth as underlying principles in the UN
Charter, such provisos are however subject to enforcement measures decided by the
Security Council for the maintenance of international peace and security under Chapter VII
of the Charter. A final example: under Article 103, "(i)n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the present
charter shall prevail," thus unquestionably denying the Philippines — as a member — the
sovereign power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international pacts
— both bilateral and multilateral — that involve limitations on Philippine sovereignty. These
are enumerated by the Solicitor General in his Compliance dated October 24, 1996, as
follows:
(a) Bilateral convention with the United States regarding taxes on income, where the
Philippines agreed, among others, to exempt from tax, income received in the Philippines
by, among others, the Federal Reserve Bank of the United States, the Export/Import Bank of
the United States, the Overseas Private Investment Corporation of the United States.
Likewise, in said convention, wages, salaries and similar remunerations paid by the United
States to its citizens for labor and personal services performed by them as employees or
officials of the United States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double
taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt
from all customs duties, inspection fees and other duties or taxes aircrafts of South Korea
and the regular equipment, spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from
customs duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel,
lubricating oils, spare parts, regular equipment, stores on board Japanese aircrafts while on
Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air
carriers the same privileges as those granted to Japanese and Korean air carriers under
separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the
Philippines exempted Israeli nationals from the requirement of obtaining transit or visitor
visas for a sojourn in the Philippines not exceeding 59 days.
(i) Bilateral agreement with France exempting French nationals from the requirement of
obtaining transit and visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises
of Special Missions in the Philippines are inviolable and its agents can not enter said
premises without consent of the Head of Mission concerned. Special Missions are also
exempted from customs duties, taxes and related charges.
(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines agreed
to be governed by the Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the
International Court of Justice. The International Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a treaty, any question of international law, the
existence of any fact which, if established, would constitute a breach "of international
obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its
sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and immunities to the Philippines, its
officials and its citizens. The same reciprocity characterizes the Philippine commitments
under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the
environment, the law of the sea, or trade, constrain domestic political sovereignty through
the assumption of external obligations. But unless anarchy in international relations is
preferred as an alternative, in most cases we accept that the benefits of the reciprocal
obligations involved outweigh the costs associated with any loss of political sovereignty.
(T)rade treaties that structure relations by reference to durable, well-defined substantive
norms and objective dispute resolution procedures reduce the risks of larger countries
exploiting raw economic power to bully smaller countries, by subjecting power relations to
some form of legal ordering. In addition, smaller countries typically stand to gain
disproportionately from trade liberalization. This is due to the simple fact that liberalization
will provide access to a larger set of potential new trading relationship than in case of the
larger country gaining enhanced success to the smaller country's market. 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines
"adopts the generally accepted principles of international law as part of the law of the land
and adheres to the policy of . . . cooperation and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of
the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 49 intrudes
on the power of the Supreme Court to promulgate rules concerning pleading, practice and
procedures. 50
To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate its
full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights of the
owner referred to in paragraph 1 (b) of Article 28, if the subject matter of a patent is a
process for obtaining a product, the judicial authorities shall have the authority to order the
defendant to prove that the process to obtain an identical product is different from the
patented process. Therefore, Members shall provide, in at least one of the following
circumstances, that any identical product when produced without the consent of the patent
owner shall, in the absence of proof to the contrary, be deemed to have been obtained by
the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process and
the owner of the patent has been unable through reasonable efforts to determine the
process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1
shall be on the alleged infringer only if the condition referred to in subparagraph (a) is
fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in
protecting their manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (not the words
"in the absence of proof to the contrary") presumption that a product shown to be identical
to one produced with the use of a patented process shall be deemed to have been obtained
by the (illegal) use of the said patented process, (1) where such product obtained by the
patented product is new, or (2) where there is "substantial likelihood" that the identical
product was made with the use of the said patented process but the owner of the patent
could not determine the exact process used in obtaining such identical product. Hence, the
"burden of proof" contemplated by Article 34 should actually be understood as the duty of
the alleged patent infringer to overthrow such presumption. Such burden, properly
understood, actually refers to the "burden of evidence" (burden of going forward) placed on
the producer of the identical (or fake) product to show that his product was produced
without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since,
regardless of the presumption provided under paragraph 1 of Article 34, such owner still has
to introduce evidence of the existence of the alleged identical product, the fact that it is
"identical" to the genuine one produced by the patented process and the fact of "newness"
of the genuine product or the fact of "substantial likelihood" that the identical product was
made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as the
present law on the subject, Republic Act No. 165, as amended, otherwise known as the
Patent Law, provides a similar presumption in cases of infringement of patented design or
utility model, thus:
Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility model
shall consist in unauthorized copying of the patented design or utility model for the purpose
of trade or industry in the article or product and in the making, using or selling of the article
or product copying the patented design or utility model. Identity or substantial identity with
the patented design or utility model shall constitute evidence of copying. (emphasis
supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable
presumption applies only if (1) the product obtained by the patented process in NEW or (2)
there is a substantial likelihood that the identical product was made by the process and the
process owner has not been able through reasonable effort to determine the process used.
Where either of these two provisos does not obtain, members shall be free to determine
the appropriate method of implementing the provisions of TRIPS within their own internal
systems and processes.
By and large, the arguments adduced in connection with our disposition of the third issue —
derogation of legislative power — will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34
does not contain an unreasonable burden, consistent as it is with due process and the
concept of adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on patents,
trademarks and copyrights, the adjustment in legislation and rules of procedure will not be
substantial. 52
Fifth Issue: Concurrence Only in the WTO Agreement and
Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes —
but not in the other documents referred to in the Final Act, namely the Ministerial
Declaration and Decisions and the Understanding on Commitments in Financial Services —
is defective and insufficient and thus constitutes abuse of discretion. They submit that such
concurrence in the WTO Agreement alone is flawed because it is in effect a rejection of the
Final Act, which in turn was the document signed by Secretary Navarro, in representation of
the Republic upon authority of the President. They contend that the second letter of the
President to the Senate 53 which enumerated what constitutes the Final Act should have
been the subject of concurrence of the Senate.
"A  final act, sometimes called  protocol de cloture, is an instrument which records the
winding up of the proceedings of a diplomatic conference and usually includes a
reproduction of the texts of treaties, conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the conference." 54 It is not the treaty
itself. It is rather a summary of the proceedings of a protracted conference which may have
taken place over several years. The text of the "Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations" is contained in just one page 55 in Vol. I
of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final
Act, Secretary Navarro as representative of the Republic of the Philippines undertook:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities with a view to seeking approval of the Agreement in accordance with
their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act
required from its signatories, namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT which
provides that representatives of the members can meet "to give effect to those provisions
of this Agreement which invoke joint action, and generally with a view to facilitating the
operation and furthering the objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also approved in Marrakesh does
not apply to the Philippines. It applies only to those 27 Members which "have indicated in
their respective schedules of commitments on standstill, elimination of monopoly,
expansion of operation of existing financial service suppliers, temporary entry of personnel,
free transfer and processing of information, and national treatment with respect to access
to payment, clearing systems and refinancing available in the normal course of business." 57
On the other hand, the WTO Agreement itself expresses what multilateral agreements are
deemed included as its integral parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-work for the conduct of trade
relations among its Members in matters to the agreements and associated legal instruments
included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3,
(hereinafter referred to as "Multilateral Agreements") are integral parts of this Agreement,
binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4 (hereinafter
referred to as "Plurilateral Trade Agreements") are also part of this Agreement for those
Members that have accepted them, and are binding on those Members. The Plurilateral
Trade Agreements do not create either obligation or rights for Members that have not
accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter
referred to as "GATT 1994") is legally distinct from the General Agreement on Tariffs and
Trade, dated 30 October 1947, annexed to the Final Act adopted at the conclusion of the
Second Session of the Preparatory Committee of the United Nations Conference on Trade
and Employment, as subsequently rectified, amended or modified (hereinafter referred to
as "GATT 1947").
It should be added that the Senate was well-aware of what it was concurring in as shown by
the members' deliberation on August 25, 1994. After reading the letter of President Ramos
dated August 11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first
day hearing of this Committee yesterday. Was the observation made by Senator Tañada that
what was submitted to the Senate was not the agreement on establishing the World Trade
Organization by the final act of the Uruguay Round which is not the same as the agreement
establishing the World Trade Organization? And on that basis, Senator Tolentino raised a
point of order which, however, he agreed to withdraw upon understanding that his
suggestion for an alternative solution at that time was acceptable. That suggestion was to
treat the proceedings of the Committee as being in the nature of briefings for Senators until
the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new . . . is he making a new
submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Tañada and later on Senator Tolentino since they
were the ones that raised this question yesterday?
Senator Tañada, please.
SEN.  TAÑADA:  Thank you, Mr.  Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is being
submitted to the Senate for ratification is not the Final Act of the Uruguay Round, but rather
the Agreement on the World Trade Organization as well as the Ministerial Declarations and
Decisions, and the Understanding and Commitments in Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator Tolentino? And
after him Senator Neptali Gonzales and Senator Lina.
SEN.  TOLENTINO, Mr.  Chairman, I have not seen the new submission actually transmitted to
us but I saw the draft of his earlier, and I think it now complies with the provisions of the
Constitution, and with the Final Act itself  .  The Constitution does not require us to ratify the
Final Act. It requires us to ratify the Agreement which is now being submitted. The Final Act
itself specifies what is going to be submitted to with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree:  (a) to submit as appropriate the
WTO Agreement for the consideration of the respective competent authorities with a view to
seeking approval of the Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the governments
for ratification or acceptance as whatever their constitutional procedures may provide but it
is the World Trade Organization Agreement.  And if that is the one that is being submitted
now, I think it satisfies both the Constitution and the Final Act itself  .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN.  GONZALES.  Mr.  Chairman, my views on this matter are already a matter of
record.  And they had been adequately reflected in the journal of yesterday's session and I
don't see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any
comment on this?
SEN.  LINA.  Mr.  President, I agree with the observation just made by Senator Gonzales out of
the abundance of question.  Then the new submission is, I believe, stating the obvious and
therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement,
petitioners are invoking this Court's constitutionally imposed duty "to determine whether or
not there has been grave abuse of discretion amounting to lack or excess of jurisdiction" on
the part of the Senate in giving its concurrence therein via Senate Resolution No. 97.
Procedurally, a writ of certiorari  grounded on grave abuse of discretion may be issued by
the Court under Rule 65 of the Rules of Court when it is amply shown that petitioners have
no other plain, speedy and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as
is equivalent to lack of jurisdiction. 61 Mere abuse of discretion is not enough. It must
be grave abuse of discretion as when the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and must be so patent and so gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined
or to act at all in contemplation of law. 62 Failure on the part of the petitioner to show grave
abuse of discretion will result in the dismissal of the petition. 63
In rendering this Decision, this Court never forgets that the Senate, whose act is under
review, is one of two sovereign houses of Congress and is thus entitled to great respect in its
actions. It is itself a constitutional body independent and coordinate, and thus its actions are
presumed regular and done in good faith. Unless convincing proof and persuasive
arguments are presented to overthrow such presumptions, this Court will resolve every
doubt in its favor. Using the foregoing well-accepted definition of grave abuse of discretion
and the presumption of regularity in the Senate's processes, this Court cannot find any
cogent reason to impute grave abuse of discretion to the Senate's exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution. 64
It is true, as alleged by petitioners, that broad constitutional principles require the State to
develop an independent national economy effectively controlled by Filipinos; and to protect
and/or prefer Filipino labor, products, domestic materials and locally produced goods. But it
is equally true that such principles — while serving as judicial and legislative guides — are
not in themselves sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate which mandate the pursuit
of a "trade policy that serves the general welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity" and the promotion of industries "which
are competitive in both domestic and foreign markets," thereby justifying its acceptance of
said treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and
judicial powers is balanced by the adoption of the generally accepted principles of
international law as part of the law of the land and the adherence of the Constitution to the
policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its
consent to the WTO Agreement thereby making it "a part of the law of the land" is a
legitimate exercise of its sovereign duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or personal hostility" in such exercise. It is
not impossible to surmise that this Court, or at least some of its members, may even agree
with petitioners that it is more advantageous to the national interest to strike down Senate
Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the
Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of
our own judicial power and duty. Ineludably, what the Senate did was a valid exercise of its
authority. As to whether such exercise was wise, beneficial or viable is outside the realm of
judicial inquiry and review. That is a matter between the elected policy makers and the
people. As to whether the nation should join the worldwide march toward trade
liberalization and economic globalization is a matter that our people should determine in
electing their policy makers. After all, the WTO Agreement allows withdrawal of
membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance 65 where "the East will become the dominant region of the world economically,
politically and culturally in the next century." He refers to the "free market" espoused by
WTO as the "catalyst" in this coming Asian ascendancy. There are at present about 31
countries including China, Russia and Saudi Arabia negotiating for membership in the WTO.
Notwithstanding objections against possible limitations on national sovereignty, the WTO
remains as the only viable structure for multilateral trading and the veritable forum for the
development of international trade law. The alternative to WTO is isolation, stagnation, if
not economic self-destruction. Duly enriched with original membership, keenly aware of the
advantages and disadvantages of globalization with its on-line experience, and endowed
with a vision of the future, the Philippines now straddles the crossroads of an international
strategy for economic prosperity and stability in the new millennium. Let the people,
through their duly authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
CASE 13: G.R. No. 91649             May 14, 1991
ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO
SANCHEZ, petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.
H.B. Basco & Associates for petitioners.
Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.
PARAS, J.:
A TV ad proudly announces:
"The new PAGCOR — responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant petition seeking to
annul the Philippine Amusement and Gaming Corporation (PAGCOR) Charter — PD 1869,
because it is allegedly contrary to morals, public policy and order, and because —
A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by
law. It waived the Manila City government's right to impose taxes and license fees, which is
recognized by law;
B. For the same reason stated in the immediately preceding paragraph, the law has intruded
into the local government's right to impose local taxes and license fees. This, in
contravention of the constitutionally enshrined principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR —
conducted gambling, while most other forms of gambling are outlawed, together with
prostitution, drug trafficking and other vices;
D. It violates the avowed trend of the Cory government away from monopolistic and crony
economy, and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the
declared national policy of the "new restored democracy" and the people's will as expressed
in the 1987 Constitution. The decree is said to have a "gambling objective" and therefore is
contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of
Article XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner
Basco being also the Chairman of the Committee on Laws of the City Council of Manila), can
question and seek the annulment of PD 1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of
P.D. 1067-A dated January 1, 1977 and was granted a franchise under P.D. 1067-B also
dated January 1, 1977 "to establish, operate and maintain gambling casinos on land or
water within the territorial jurisdiction of the Philippines." Its operation was originally
conducted in the well known floating casino "Philippine Tourist." The operation was
considered a success for it proved to be a potential source of revenue to fund infrastructure
and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to
fully attain this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the
Government to regulate and centralize all games of chance authorized by existing franchise
or permitted by law, under the following declared policy —
Sec. 1. Declaration of Policy. — It is hereby declared to be the policy of the State to
centralize and integrate all games of chance not heretofore authorized by existing franchises
or permitted by law in order to attain the following objectives:
(a) To centralize and integrate the right and authority to operate and conduct games of
chance into one corporate entity to be controlled, administered and supervised by the
Government.
(b) To establish and operate clubs and casinos, for amusement and recreation, including
sports gaming pools, (basketball, football, lotteries, etc.) and such other forms of
amusement and recreation including games of chance, which may be allowed by law within
the territorial jurisdiction of the Philippines and which will: (1) generate sources of
additional revenue to fund infrastructure and socio-civic projects, such as flood control
programs, beautification, sewerage and sewage projects, Tulungan ng Bayan Centers,
Nutritional Programs, Population Control and such other essential public services; (2) create
recreation and integrated facilities which will expand and improve the country's existing
tourist attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices and
corruptions that are normally prevalent on the conduct and operation of gambling clubs and
casinos without direct government involvement. (Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines.
Under its Charter's repealing clause, all laws, decrees, executive orders, rules and
regulations, inconsistent therewith, are accordingly repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government revenue, next to the
Bureau of Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned
P3.43 Billion, and directly remitted to the National Government a total of P2.5 Billion in form
of franchise tax, government's income share, the President's Social Fund and Host Cities'
share. In addition, PAGCOR sponsored other socio-cultural and charitable projects on its
own or in cooperation with various governmental agencies, and other private associations
and organizations. In its 3 1/2 years of operation under the present administration, PAGCOR
remitted to the government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was
employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the
livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same
is "null and void" for being "contrary to morals, public policy and public order," monopolistic
and tends toward "crony economy", and is violative of the equal protection clause and local
autonomy as well as for running counter to the state policies enunciated in Sections 11
(Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II, Section
1 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987
Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most
deliberate consideration by the Court, involving as it does the exercise of what has been
described as "the highest and most delicate function which belongs to the judicial
department of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146
SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and coordinate
branch of the government We need not be reminded of the time-honored principle, deeply
ingrained in our jurisprudence, that a statute is presumed to be valid. Every presumption
must be indulged in favor of its constitutionality. This is not to say that We approach Our
task with diffidence or timidity. Where it is clear that the legislature or the executive for that
matter, has over-stepped the limits of its authority under the constitution, We should not
hesitate to wield the axe and let it fall heavily, as fall it must, on the offending statute
(Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice
Zaldivar underscored the —
. . . thoroughly established principle which must be followed in all cases where questions of
constitutionality as obtain in the instant cases are involved. All presumptions are indulged in
favor of constitutionality; one who attacks a statute alleging unconstitutionality must prove
its invalidity beyond a reasonable doubt; that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived which supports the statute,
it will be upheld and the challenger must negate all possible basis; that the courts are not
concerned with the wisdom, justice, policy or expediency of a statute and that a liberal
interpretation of the constitution in favor of the constitutionality of legislation should be
adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660,
663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v.
Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA
220, 241-242 [1983] cited in Citizens Alliance for Consumer Protection v. Energy Regulatory
Board, 162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are questioning the legal
personality of petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and in keeping with
the Court's duty, under the 1987 Constitution, to determine whether or not the other
branches of government have kept themselves within the limits of the Constitution and the
laws and that they have not abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance of this petition. (Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the cases before us,
We hold that the same is satisfied by the petitioners and intervenors because each of them
has sustained or is in danger of sustaining an immediate injury as a result of the acts or
measures complained of. And even if, strictly speaking they are not covered by the
definition, it is still within the wide discretion of the Court to waive the requirement and so
remove the impediment to its addressing and resolving the serious constitutional questions
raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders issued by President Quirino
although they were involving only an indirect and general interest shared in common with
the public. The Court dismissed the objection that they were not proper parties and ruled
that "the transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must technicalities of procedure." We
have since then applied the exception in many other cases. (Association of Small
Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition
of gambling does not mean that the Government cannot regulate it in the exercise of its
police power.
The concept of police power is well-established in this jurisdiction. It has been defined as the
"state authority to enact legislation that may interfere with personal liberty or property in
order to promote the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it
consists of (1) an imposition or restraint upon liberty or property, (2) in order to foster the
common good. It is not capable of an exact definition but has been, purposely, veiled in
general terms to underscore its all-comprehensive embrace. (Philippine Association of
Service Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future
where it could be done, provides enough room for an efficient and flexible response to
conditions and circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to
the charter. Along with the taxing power and eminent domain, it is inborn in the very fact of
statehood and sovereignty. It is a fundamental attribute of government that has enabled it
to perform the most vital functions of governance. Marshall, to whom the expression has
been credited, refers to it succinctly as the plenary power of the state "to govern its
citizens". (Tribe, American Constitutional Law, 323, 1978). The police power of the State is a
power co-extensive with self-protection and is most aptly termed the "law of overwhelming
necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential,
insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a
dynamic force that enables the state to meet the agencies of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize
thru an appropriate institution all games of chance authorized by existing franchise or
permitted by law" (1st whereas clause, PD 1869). As was subsequently proved, regulating
and centralizing gambling operations in one corporate entity — the PAGCOR, was beneficial
not just to the Government but to society in general. It is a reliable source of much needed
revenue for the cash strapped Government. It provided funds for social impact projects and
subjected gambling to "close scrutiny, regulation, supervision and control of the
Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct
intervention of the Government, the evil practices and corruptions that go with gambling
will be minimized if not totally eradicated. Public welfare, then, lies at the bottom of the
enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to
impose taxes and legal fees; that the exemption clause in P.D. 1869 is violative of the
principle of local autonomy. They must be referring to Section 13 par. (2) of P.D. 1869 which
exempts PAGCOR, as the franchise holder from paying any "tax of any kind or form, income
or otherwise, as well as fees, charges or levies of whatever nature, whether National or
Local."
(2) Income and other taxes. — a) Franchise Holder: No tax of any kind or form, income or
otherwise as well as fees, charges or levies of whatever nature, whether National or Local,
shall be assessed and collected under this franchise from the Corporation; nor shall any
form or tax or charge attach in any way to the earnings of the Corporation, except a
franchise tax of five (5%) percent of the gross revenues or earnings derived by the
Corporation from its operations under this franchise. Such tax shall be due and payable
quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or
assessments of any kind, nature or description, levied, established or collected by any
municipal, provincial or national government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose
taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v.
Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show an
intent to confer that power or the municipality cannot assume it" (Medina v. City of Baguio,
12 SCRA 62). Its "power to tax" therefore must always yield to a legislative act which is
superior having been passed upon by the state itself which has the "inherent power to tax"
(Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed
that "municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No.
7909, January 18, 1957) which has the power to "create and abolish municipal corporations"
due to its "general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v.
Orandia, 5 SCRA 541). Congress, therefore, has the power of control over Local governments
(Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the City of Manila
the power to tax certain matters, it can also provide for exemptions or even take back the
power.
(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As
early as 1975, the power of local governments to regulate gambling thru the grant of
"franchise, licenses or permits" was withdrawn by P.D. No. 771 and was vested exclusively
on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered
cities and other local governments to issue license, permit or other form of franchise to
operate, maintain and establish horse and dog race tracks, jai-alai and other forms of
gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog
race tracks, jai-alai and other forms of gambling shall be issued by the national government
upon proper application and verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or permits" for
the operation of gambling. Necessarily, the power to demand or collect license fees which is
a consequence of the issuance of "licenses or permits" is no longer vested in the City of
Manila.
(d) Local governments have no power to tax instrumentalities of the National Government.
PAGCOR is a government owned or controlled corporation with an original charter, PD 1869.
All of its shares of stocks are owned by the National Government. In addition to its
corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers thus:
Sec. 9. Regulatory Power. — The Corporation shall maintain a Registry of the affiliated
entities, and shall exercise all the powers, authority and the responsibilities vested in the
Securities and Exchange Commission over such affiliating entities mentioned under the
preceding section, including, but not limited to amendments of Articles of Incorporation and
By-Laws, changes in corporate term, structure, capitalization and other matters concerning
the operation of the affiliated entities, the provisions of the Corporation Code of the
Philippines to the contrary notwithstanding, except only with respect to original
incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is
governmental, which places it in the category of an agency or instrumentality of the
Government. Being an instrumentality of the Government, PAGCOR should be and actually
is exempt from local taxes. Otherwise, its operation might be burdened, impeded or
subjected to control by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede, burden or in any
manner control the operation of constitutional laws enacted by Congress to carry into
execution the powers vested in the federal government. (MC Culloch v. Marland, 4 Wheat
316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local
governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of
power on the part of the States to touch, in that way (taxation) at least, the
instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it can be agreed
that no state or political subdivision can regulate a federal instrumentality in such a way as
to prevent it from consummating its federal responsibilities, or even to seriously burden it in
the accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis
supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of
what local authorities may perceive to be undesirable activities or enterprise using the
power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch
v. Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very
entity which has the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated
by P.D. 1869. This is a pointless argument. Article X of the 1987 Constitution (on Local
Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own source of revenue
and to levy taxes, fees, and other charges subject to such guidelines and limitation as the
congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees
and charges shall accrue exclusively to the local government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to "limitations"
which Congress may provide by law. Since PD 1869 remains an "operative" law until
"amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption
clause" remains as an exception to the exercise of the power of local governments to
impose taxes and fees. It cannot therefore be violative but rather is consistent with the
principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means
"decentralization" (III Records of the 1987 Constitutional Commission, pp. 435-436, as cited
in Bernas, The Constitution of the Republic of the Philippines, Vol. II, First Ed., 1988, p. 374).
It does not make local governments sovereign within the state or an "imperium in imperio."
Local Government has been described as a political subdivision of a nation or state which is
constituted by law and has substantial control of local affairs. In a unitary system of
government, such as the government under the Philippine Constitution, local governments
can only be an intra sovereign subdivision of one sovereign nation, it cannot be
an imperium in imperio. Local government in such a system can only mean a measure of
decentralization of the function of government. (emphasis supplied)
As to what state powers should be "decentralized" and what may be delegated to local
government units remains a matter of policy, which concerns wisdom. It is therefore a
political question. (Citizens Alliance for Consumer Protection v. Energy Regulatory Board,
162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is
a State concern and hence, it is the sole prerogative of the State to retain it or delegate it to
local governments.
As gambling is usually an offense against the State, legislative grant or express charter
power is generally necessary to empower the local corporation to deal with the subject. . . .
In the absence of express grant of power to enact, ordinance provisions on this subject
which are inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733
Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22
Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of the
Constitution, because "it legalized PAGCOR — conducted gambling, while most gambling are
outlawed together with prostitution, drug trafficking and other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners' posture
ignores the well-accepted meaning of the clause "equal protection of the laws." The clause
does not preclude classification of individuals who may be accorded different treatment
under the law as long as the classification is not unreasonable or arbitrary (Itchong v.
Hernandez, 101 Phil. 1155). A law does not have to operate in equal force on all persons or
things to be conformable to Article III, Section 1 of the Constitution (DECS v. San Diego, G.R.
No. 89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing classes of
individuals or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847).
The Constitution does not require situations which are different in fact or opinion to be
treated in law as though they were the same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal
protection is not clearly explained in the petition. The mere fact that some gambling
activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended by RA 983),
sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are legalized under
certain conditions, while others are prohibited, does not render the applicable laws, P.D.
1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because
there are other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA
827)
The equal protection clause of the 14th Amendment does not mean that all occupations
called by the same name must be treated the same way; the state may do what it can to
prevent which is deemed as evil and stop short of those cases in which harm to the few
concerned is not less than the harm to the public that would insure if the rule laid down
were made mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory
Government away from monopolies and crony economy and toward free enterprise and
privatization" suffice it to state that this is not a ground for this Court to nullify P.D. 1869. If,
indeed, PD 1869 runs counter to the government's policies then it is for the Executive
Department to recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare what the law is and
not what the law should be.1âwphi1 Under our system of government, policy issues are
within the domain of the political branches of government and of the people themselves as
the repository of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National
Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not necessarily
prohibited by the Constitution. The state must still decide whether public interest demands
that monopolies be regulated or prohibited. Again, this is a matter of policy for the
Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12
(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and
Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also
that these are merely statements of principles and, policies. As such, they are basically not
self-executing, meaning a law should be passed by Congress to clearly define and effectuate
such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles
ready for enforcement through the courts. They were rather directives addressed to the
executive and the legislature. If the executive and the legislature failed to heed the
directives of the articles the available remedy was not judicial or political. The electorate
could express their displeasure with the failure of the executive and the legislature through
the language of the ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47
Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec,
179 SCRA 287). Therefore, for PD 1869 to be nullified, it must be shown that there is a clear
and unequivocal breach of the Constitution, not merely a doubtful and equivocal one. In
other words, the grounds for nullity must be clear and beyond reasonable doubt. (Peralta v.
Comelec, supra) Those who petition this Court to declare a law, or parts thereof,
unconstitutional must clearly establish the basis for such a declaration. Otherwise, their
petition must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the
presumption. The dismissal of this petition is therefore, inevitable. But as to whether P.D.
1869 remains a wise legislation considering the issues of "morality, monopoly, trend to free
enterprise, privatization as well as the state principles on social justice, role of youth and
educational values" being raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board,
162 SCRA 521 —
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its
favor the presumption of validity and constitutionality which petitioners Valmonte and the
KMU have not overturned. Petitioners have not undertaken to identify the provisions in the
Constitution which they claim to have been violated by that statute. This Court, however, is
not compelled to speculate and to imagine how the assailed legislation may possibly offend
some provision of the Constitution. The Court notes, further, in this respect that petitioners
have in the main put in question the wisdom, justice and expediency of the establishment of
the OPSF, issues which are not properly addressed to this Court and which this Court may
not constitutionally pass upon. Those issues should be addressed rather to the political
departments of government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so
when the gambling resorted to is excessive. This excessiveness necessarily depends not only
on the financial resources of the gambler and his family but also on his mental, social, and
spiritual outlook on life. However, the mere fact that some persons may have lost their
material fortunes, mental control, physical health, or even their lives does not necessarily
mean that the same are directly attributable to gambling. Gambling may have been the
antecedent, but certainly not necessarily the cause. For the same consequences could have
been preceded by an overdose of food, drink, exercise, work, and even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
CASE 14: G.R. No. 129093            August 30, 2001
HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA, and HON. CALIXTO
CATAQUIZ, petitioners,
vs.
HON. FRANCISCO DIZON PAÑO and TONY CALVENTO, respondents.
QUISUMBING, J.:
For our resolution is a petition for review on certiorari seeking the reversal of the decision 1
dated February 10, 1997 of the Regional Trial Court of San Pedro, Laguna, Branch 93,
enjoining petitioners from implementing or enforcing Kapasiyahan Bilang 508, Taon 1995,
of the Sangguniang Panlalawigan of Laguna and its subsequent Order 2 dated April 21, 1997
denying petitioners' motion for reconsideration.
On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine
Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for the operation of lotto. He
asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayor's permit to open the
lotto outlet. This was denied by Mayor Cataquiz in a letter dated February 19, 1996. The
ground for said denial was an ordinance passed by the Sangguniang Panlalawigan of Laguna
entitled Kapasiyahan Blg. 508, T. 1995 which was issued on September 18, 1995. The
ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO NA ANG LOTTO
SA LALAWIGAN NG LAGUNA
SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;
SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit sa mga
kabataan;
KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at Kgg. Kgd. Gat-Ala
A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C. Larano at buong pagkakaisang
sinangayunan ng lahat ng dumalo sa pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang uri ng sugal
dito sa lalawigan ng Laguna lalo't higit ang Lotto;
IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno ng
Philippine National Police (PNP) Col. [illegible] na mahigpit na pag-ibayuhin ang pagsugpo sa
lahat ng uri ng illegal na sugal sa buong lalawigan ng Laguna lalo na ang "Jueteng". 3
As a result of this resolution of denial, respondent Calvento filed a complaint for declaratory
relief with prayer for preliminary injunction and temporary restraining order. In the said
complaint, respondent Calvento asked the Regional Trial Court of San Pedro Laguna, Branch
93, for the following reliefs: (1) a preliminary injunction or temporary restraining order,
ordering the defendants to refrain from implementing or enforcing Kapasiyahan Blg. 508, T.
1995; (2) an order requiring Hon. Municipal Mayor Calixto R Cataquiz to issue a business
permit for the operation of a lotto outlet; and (3) an order annulling or declaring as
invalid Kapasiyahan Blg. 508, T. 1995.
On February 10, 1997, the respondent judge, Francisco Dizon Paño, promulgated his
decision enjoining the petitioners from implementing or enforcing resolution
or Kapasiyahan Blg. 508, T. 1995. The dispositive portion of said decision reads:
WHEREFORE, premises considered, defendants, their agents and representatives are hereby
enjoined from implementing or enforcing resolution or kapasiyahan blg. 508, T. 1995 of the
Sangguniang Panlalawigan ng Laguna prohibiting the operation of the lotto in the province
of Laguna.
SO ORDERED.4
Petitioners filed a motion for reconsideration which was subsequently denied in an Order
dated April 21, 1997, which reads:
Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr. and the
Sangguniang Panlalawigan of Laguna, thru counsel, with the opposition filed by plaintiff's
counsel and the comment thereto filed by counsel for the defendants which were duly
noted, the Court hereby denies the motion for lack of merit.
SO ORDERED.5
On May 23, 1997, petitioners filed this petition alleging that the following errors were
committed by the respondent trial court:
I of the Sangguniang Panlalawigan of Laguna and the denial of a mayor's permit based
THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM IMPLEMENTING
KAPASIYAHAN BLG. 508, T. 1995 OF THE SANGGUNIANG PANLALAWIGAN OF LAGUNA
PROHIBITING THE OPERATION OF THE LOTTO IN THE PROVINCE OF LAGUNA.
II
THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY THE PETITIONERS
THAT BEFORE ANY GOVERNMENT PROJECT OR PROGRAM MAY BE IMPLEMENTED BY THE
NATIONAL AGENCIES OR OFFICES, PRIOR CONSULTATION AND APPROVAL BY THE LOCAL
GOVERNMENT UNITS CONCERNED AND OTHER CONCERNED SECTORS IS REQUIRED.
Petitioners contend that the assailed resolution is a valid policy declaration of the Provincial
Government of Laguna of its vehement objection to the operation of lotto and all forms of
gambling. It is likewise a valid exercise of the provincial government's police power under
the General Welfare Clause of Republic Act 7160, otherwise known as the Local Government
Code of 1991.6 They also maintain that respondent's lotto operation is illegal because no
prior consultations and approval by the local government were sought before it was
implemented contrary to the express provisions of Sections 2 (c) and 27 of R.A. 7160. 7
For his part, respondent Calvento argues that the questioned resolution is, in effect, a
curtailment of the power of the state since in this case the national legislature itself had
already declared lotto as legal and permitted its operations around the country. 8 As for the
allegation that no prior consultations and approval were sought from the sangguniang
panlalawigan of Laguna, respondent Calvento contends this is not mandatory since such a
requirement is merely stated as a declaration of policy and not a self-executing provision of
the Local Government Code of 1991.9 He also states that his operation of the lotto system is
legal because of the authority given to him by the PCSO, which in turn had been granted a
franchise to operate the lotto by Congress. 10
The Office of the Solicitor General (OSG), for the State, contends that the Provincial
Government of Laguna has no power to prohibit a form of gambling which has been
authorized by the national government.11 He argues that this is based on the principle that
ordinances should not contravene statutes as municipal governments are merely agents of
the national government. The local councils exercise only delegated legislative powers which
have been conferred on them by Congress. This being the case, these councils, as delegates,
cannot be superior to the principal or exercise powers higher than those of the latter. The
OSG also adds that the question of whether gambling should be permitted is for Congress to
determine, taking into account national and local interests. Since Congress has allowed the
PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant to its legislative
grant of authority, the province's Sangguniang Panlalawigan cannot nullify the exercise of
said authority by preventing something already allowed by Congress.
The issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508, T. 1995
thereon are valid; and (2) whether prior consultations and approval by the
concerned Sanggunian are needed before a lotto system can be operated in a given local
government unit.
The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor's
permit for the operation of a lotto outlet in favor of private respondent. According to the
mayor, he based his decision on an existing ordinance prohibiting the operation of lotto in
the province of Laguna. The ordinance, however, merely states the "objection" of the
council to the said game. It is but a mere policy statement on the part of the local council,
which is not self-executing. Nor could it serve as a valid ground to prohibit the operation of
the lotto system in the province of Laguna. Even petitioners admit as much when they
stated in their petition that:
5.7. The terms of the Resolution and the validity thereof are express and clear. The
Resolution is a policy declaration of the Provincial Government of Laguna of its vehement
opposition and/or objection to the operation of and/or all forms of gambling including the
Lotto operation in the Province of Laguna. 12
As a policy statement expressing the local government's objection to the lotto, such
resolution is valid. This is part of the local government's autonomy to air its views which may
be contrary to that of the national government's. However, this freedom to exercise
contrary views does not mean that local governments may actually enact ordinances that go
against laws duly enacted by Congress. Given this premise, the assailed resolution in this
case could not and should not be interpreted as a measure or ordinance prohibiting the
operation of lotto.
The game of lotto is a game of chance duly authorized by the national government through
an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42, is the law
which grants a franchise to the PCSO and allows it to operate the lotteries. The pertinent
provision reads:
SECTION 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity Sweepstakes
Office, hereinafter designated the Office, shall be the principal government agency for
raising and providing for funds for health programs, medical assistance and services and
charities of national character, and as such shall have the general powers conferred in
section thirteen of Act Numbered One thousand four hundred fifty-nine, as amended, and
shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries, and other similar
activities, in such frequency and manner, as shall be determined, and subject to
such rules and regulations as shall be promulgated by the Board of Directors.
This statute remains valid today. While lotto is clearly a game of chance, the national
government deems it wise and proper to permit it. Hence, the Sangguniang Panlalawigan of
Laguna, a local government unit, cannot issue a resolution or an ordinance that would seek
to prohibit permits. Stated otherwise, what the national legislature expressly allows by law,
such as lotto, a provincial board may not disallow by ordinance or resolution.
In our system of government, the power of local government units to legislate and enact
ordinances and resolutions is merely a delegated power coming from Congress. As held
in Tatel vs. Virac,13 ordinances should not contravene an existing statute enacted by
Congress. The reasons for this is obvious, as elucidated in Magtajas v. Pryce Properties
Corp.14
Municipal governments are only agents of the national government. Local councils exercise
only delegated legislative powers conferred upon them by Congress as the national
lawmaking body. The delegate cannot be superior to the principal or exercise powers higher
than those of the latter. It is a heresy to suggest that the local government units can undo
the acts of Congress, from which they have derived their power in the first place, and negate
by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from
the legislature. It breathes into them the breath of life, without which they cannot exist. As
it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is
some constitutional limitation on the right, the legislature might, by a single act, and if we
can suppose it capable of so great a folly and so great a wrong, sweep from existence all of
the municipal corporations in the state, and the corporation could not prevent it. We know
of no limitation on the right so far as the corporation themselves are concerned. They are,
so to phrase it, the mere tenants at will of the legislature (citing Clinton vs. Ceder Rapids,
etc. Railroad Co., 24 Iowa 455).
Nothing in the present constitutional provision enhancing local autonomy dictates a
different conclusion.
The basic relationship between the national legislature and the local government units has
not been enfeebled by the new provisions in the Constitution strengthening the policy of
local autonomy. Without meaning to detract from that policy, we here confirm that
Congress retains control of the local government units although in significantly reduced
degree now than under our previous Constitutions. The power to create still includes the
power to destroy. The power to grant still includes the power to withhold or recall. True,
there are certain notable innovations in the Constitution, like the direct conferment on the
local government units of the power to tax (citing Art. X, Sec. 5, Constitution), which cannot
now be withdrawn by mere statute. By and large, however, the national legislature is still
the principal of the local government units, which cannot defy its will or modify or violate
it.15
Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and confined within the
extent allowed by the central authority. Besides, the principle of local autonomy under the
1987 Constitution simply means "decentralization". It does not make local governments
sovereign within the state or an "imperium in imperio".16
To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail
of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification to
prohibit lotto in his municipality. For said resolution is nothing but an expression of the local
legislative unit concerned. The Board's enactment, like spring water, could not rise above its
source of power, the national legislature.
As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and 27
of Republic Act 7160, otherwise known as the Local Government Code of 1991, apply
mandatorily in the setting up of lotto outlets around the country. These provisions state:
SECTION 2. Declaration of Policy. — . . .
(c) It is likewise the policy of the State to require all national agencies and offices to conduct
periodic consultations with appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions.
SECTION 27. Prior Consultations Required. — No project or program shall be implemented
by government authorities unless the consultations mentioned in Section 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained;
Provided, that occupants in areas where such projects are to be implemented shall not be
evicted unless, appropriate relocation sites have been provided, in accordance with the
provisions of the Constitution.
From a careful reading of said provisions, we find that these apply only to national programs
and/or projects which are to be implemented in a particular local community. Lotto is
neither a program nor a project of the national government, but of a charitable institution,
the PCSO. Though sanctioned by the national government, it is far fetched to say that lotto
falls within the contemplation of Sections 2 (c) and 27 of the Local Government Code.
Section 27 of the Code should be read in conjunction with Section 26 thereof. 17 Section 26
reads:
SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological
Balance. - It shall be the duty of every national agency or government-owned or controlled
corporation authorizing or involved in the planning and implementation of any project or
program that may cause pollution, climatic change, depletion of non-renewable resources,
loss of crop land, range-land, or forest cover, and extinction of animal or plant species, to
consult with the local government units, nongovernmental organizations, and other sectors
concerned and explain the goals and objectives of the project or program, its impact upon
the people and the community in terms of environmental or ecological balance, and the
measures that will be undertaken to prevent or minimize the adverse effects thereof.
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose effects are among those enumerated in Section 26 and 27, to
wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause
the depletion of non-renewable resources; (4) may result in loss of crop land, range-land, or
forest cover; (5) may eradicate certain animal or plant species from the face of the planet;
and (6) other projects or programs that may call for the eviction of a particular group of
people residing in the locality where these will be implemented. Obviously, none of these
effects will be produced by the introduction of lotto in the province of Laguna.
Moreover, the argument regarding lack of consultation raised by petitioners is clearly an
afterthought on their part. There is no indication in the letter of Mayor Cataquiz that this
was one of the reasons for his refusal to issue a permit. That refusal was predicated solely
but erroneously on the provisions of Kapasiyahan Blg. 508, Taon 1995, of the Sangguniang
Panlalawigan of Laguna.
In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from
enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of the Sangguniang
Panlalawigan of Laguna. That resolution expresses merely a policy statement of the Laguna
provincial board. It possesses no binding legal force nor requires any act of implementation.
It provides no sufficient legal basis for respondent mayor's refusal to issue the permit sought
by private respondent in connection with a legitimate business activity authorized by a law
passed by Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial Court
of San Pedro, Laguna enjoining the petitioners from implementing or enforcing Resolution
or Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of Laguna is hereby AFFIRMED. No
costs.
SO ORDERED.
CASE 15: G.R. No. 161872             April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on
December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due
course to petitioner’s Certificate of Candidacy in its Resolution No. 6558  dated January 17,
2004. The decision, however, was not unanimous since Commissioners Luzviminda G.
Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties
or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No.
6558.  Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioner’s Motion for Reconsideration  and on similar motions filed by
other aspirants for national elective positions, denied the same under the aegis of Omnibus
Resolution No. 6604  dated February 11, 2004. The COMELEC declared petitioner and thirty-
five (35) others nuisance candidates who could not wage a nationwide campaign and/or are
not nominated by a political party or are not supported by a registered political party with a
national constituency. Commissioner Sadain maintained his vote for petitioner. By then,
Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were
allegedly rendered in violation of his right to "equal access to opportunities for public
service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can afford to
wage a nationwide campaign and/or are nominated by political parties. In so doing,
petitioner argues that the COMELEC indirectly amended the constitutional provisions on the
electoral process and limited the power of the sovereign people to choose their leaders. The
COMELEC supposedly erred in disqualifying him since he is the most qualified among all the
presidential candidates, i.e., he possesses all the constitutional and legal qualifications for
the office of the president, he is capable of waging a national campaign since he has
numerous national organizations under his leadership, he also has the capacity to wage an
international campaign since he has practiced law in other countries, and he has a platform
of government. Petitioner likewise attacks the validity of the form for the Certificate of
Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear
and reasonable guidelines for determining the qualifications of candidates since it does not
ask for the candidate’s bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access
to opportunities for public office" is the claim that there is a constitutional right to run for or
hold public office and, particularly in his case, to seek the presidency. There is none. What is
recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II
of the Constitution neither bestows such a right nor elevates the privilege to the level of an
enforceable right. There is nothing in the plain language of the provision which suggests
such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled
"Declaration of Principles and State Policies." The provisions under the Article are generally
considered not self-executing,2 and there is no plausible reason for according a different
treatment to the "equal access" provision. Like the rest of the policies enumerated in Article
II, the provision does not contain any judicially enforceable constitutional right but merely
specifies a guideline for legislative or executive action. 3 The disregard of the provision does
not give rise to any cause of action before the courts. 4
An inquiry into the intent of the framers 5 produces the same determination that the
provision is not self-executory. The original wording of the present Section 26, Article II had
read, "The State shall broaden opportunities to public office and prohibit public
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth
an amendment that changed the word "broaden" to the phrase "ensure equal access," and
the substitution of the word "office" to "service." He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important
would be equal access to the opportunity. If you broaden, it would necessarily mean that
the government would be mandated to create as many offices as are possible to
accommodate as many people as are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should not mandate the State to make
the government the number one employer and to limit offices only to what may be
necessary and expedient yet offering equal opportunities to access to it, I change the word
"broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures that
would accommodate as many people as possible into public office. The approval of the
"Davide amendment" indicates the design of the framers to cast the provision as simply
enunciatory of a desired policy objective and not reflective of the imposition of a clear State
burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the
source of positive rights. It is difficult to interpret the clause as operative in the absence of
legislation since its effective means and reach are not properly defined. Broadly written, the
myriad of claims that can be subsumed under this rubric appear to be entirely open-
ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are
susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it
was not the intention of the framers to inflict on the people an operative but amorphous
foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may be
subjected to limitations. Some valid limitations specifically on the privilege to seek elective
office are found in the provisions9 of the Omnibus Election Code on "Nuisance Candidates"
and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the instances
wherein the COMELEC may motu proprio  refuse to give due course to or cancel a Certificate
of Candidacy.
As long as the limitations apply to everybody equally without discrimination, however, the
equal access clause is not violated. Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any one who is minded to file a
certificate of candidacy. In the case at bar, there is no showing that any person is exempt
from the limitations or the burdens which they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of
the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003.
Thus, their presumed validity stands and has to be accorded due weight.
Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of
the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona  fide intention to run for office is easy to divine.
The State has a compelling interest to ensure that its electoral exercises are rational,
objective, and orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the number of candidates, the
greater the opportunities for logistical confusion, not to mention the increased allocation of
time and resources in preparation for the election. These practical difficulties should, of
course, never exempt the State from the conduct of a mandated electoral exercise. At the
same time, remedial actions should be available to alleviate these logistical hardships,
whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook
example of inefficiency, but a rot that erodes faith in our democratic institutions. As the
United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing of a
significant modicum of support before printing the name of a political organization and its
candidates on the ballot – the interest, if no other, in avoiding confusion, deception and
even frustration of the democratic [process]. 11
The COMELEC itself recognized these practical considerations when it
promulgated Resolution No. 6558  on 17 January 2004, adopting the study Memorandum of
its Law Department dated 11 January 2004. As observed in the COMELEC’s Comment:
There is a need to limit the number of candidates especially in the case of candidates for
national positions because the election process becomes a mockery even if those who
cannot clearly wage a national campaign are allowed to run. Their names would have to be
printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots.
These would entail additional costs to the government. For the official ballots in automated
counting and canvassing of votes, an additional page would amount to more or less FOUR
HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage
a decent campaign enough to project the prospect of winning, no matter how slim. 12
The preparation of ballots is but one aspect that would be affected by allowance of
"nuisance candidates" to run in the elections. Our election laws provide various
entitlements for candidates for public office, such as watchers in every polling
place,13 watchers in the board of canvassers, 14 or even the receipt of electoral
contributions.15 Moreover, there are election rules and regulations the formulations of
which are dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy becomes even
more galling. The organization of an election with bona fide candidates standing is onerous
enough. To add into the mix candidates with no serious intentions or capabilities to run a
viable campaign would actually impair the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body
would be bogged by irrelevant minutiae covering every step of the electoral process, most
probably posed at the instance of these nuisance candidates. It would be a senseless
sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the State could
exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the
moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the
compelling State interest to ensure orderly and credible elections by excising impediments
thereto, such as nuisance candidacies that distract and detract from the larger purpose. The
COMELEC is mandated by the Constitution with the administration of elections 16 and
endowed with considerable latitude in adopting means and methods that will ensure the
promotion of free, orderly and honest elections. 17 Moreover, the Constitution guarantees
that only bona fide  candidates for public office shall be free from any form of harassment
and discrimination.18 The determination of bona fide candidates is governed by the statutes,
and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application in
the case of the petitioner cannot be tested and reviewed by this Court on the basis of what
is now before it. The assailed resolutions of the COMELEC do not direct the Court to the
evidence which it considered in determining that petitioner was a nuisance candidate. This
precludes the Court from reviewing at this instance whether the COMELEC committed grave
abuse of discretion in disqualifying petitioner, since such a review would necessarily take
into account the matters which the COMELEC considered in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents purportedly
evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being
a trier of facts, can not properly pass upon the reproductions as evidence at this level.
Neither the COMELEC nor the Solicitor General appended any document to their
respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal and factual.
The basis of the factual determination is not before this Court. Thus, the remand of this case
for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in
the government. It deserves not a cursory treatment but a hearing which conforms to the
requirements of due process.
As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it
to say that the form strictly complies with Section 74 of the Omnibus Election Code.  This
provision specifically enumerates what a certificate of candidacy should contain, with the
required information tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the Constitution and other
election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded
to the COMELEC for the reception of further evidence, to determine the question on
whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in
Section 69 of the Omnibus Election Code.
The COMELEC is directed to hold and complete the reception of evidence and report its
findings to this Court with deliberate dispatch.
SO ORDERED.
CASE 16: G.R. No. 208566               November 19, 2013
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M.
ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND
MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE
OF THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as SENATE
PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR.
in his capacity as SPEAKER OF THE HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE
FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board
Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of
which assail the constitutionality of the Pork Barrel System. Due to the complexity of the
subject matter, the Court shall heretofore discuss the system‘s conceptual underpinnings
before detailing the particulars of the constitutional challenge.
The Facts
I. Pork Barrel: General Concept.
II.
"Pork Barrel" is political parlance of American -English origin. 3 Historically, its usage may be
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine feast to assuage their hunger
with morsels coming from the generosity of their well-fed master. 4 This practice was later
compared to the actions of American legislators in trying to direct federal budgets in favor
of their districts.5 While the advent of refrigeration has made the actual pork barrel
obsolete, it persists in reference to political bills that "bring home the bacon" to a
legislator‘s district and constituents.6 In a more technical sense, "Pork Barrel" refers to an
appropriation of government spending meant for localized projects and secured solely or
primarily to bring money to a representative's district. 7 Some scholars on the subject further
use it to refer to legislative control of local appropriations. 8
In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary
funds of Members of the Legislature, 9 although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered 11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds appropriated
therein were subjected to post-enactment legislator approval. Particularly, in the area of
fund release, Section 312 provides that the sums appropriated for certain public works
projects13 "shall be distributed x x x subject to the approval of a joint committee elected by
the Senate and the House of Representatives. "The committee from each House may also
authorize one of its members to approve the distribution made by the Secretary of
Commerce and Communications."14 Also, in the area of fund realignment, the same section
provides that the said secretary, "with the approval of said joint committee, or of the
authorized members thereof, may, for the purposes of said distribution, transfer
unexpended portions of any item of appropriation under this Act to any other item
hereunder."
In 1950, it has been documented15 that post-enactment legislator participation broadened
from the areas of fund release and realignment to the area of project identification. During
that year, the mechanics of the public works act was modified to the extent that the
discretion of choosing projects was transferred from the Secretary of Commerce and
Communications to legislators. "For the first time, the law carried a list of projects selected
by Members of Congress, they ‘being the representatives of the people, either on their own
account or by consultation with local officials or civil leaders.‘" 16 During this period, the pork
barrel process commenced with local government councils, civil groups, and individuals
appealing to Congressmen or Senators for projects. Petitions that were accommodated
formed part of a legislator‘s allocation, and the amount each legislator would eventually get
is determined in a caucus convened by the majority. The amount was then integrated into
the administration bill prepared by the Department of Public Works and Communications.
Thereafter, the Senate and the House of Representatives added their own provisions to the
bill until it was signed into law by the President – the Public Works Act. 17 In the 1960‘s,
however, pork barrel legislation reportedly ceased in view of the stalemate between the
House of Representatives and the Senate. 18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after
Martial Law was declared, an era when "one man controlled the legislature," 19 the reprieve
was only temporary. By 1982, the Batasang Pambansa had already introduced a new item in
the General Appropriations Act (GAA) called the" Support for Local Development Projects"
(SLDP) under the article on "National Aid to Local Government Units". Based on reports, 20 it
was under the SLDP that the practice of giving lump-sum allocations to individual legislators
began, with each assemblyman receiving ₱500,000.00. Thereafter, assemblymen would
communicate their project preferences to the Ministry of Budget and Management for
approval. Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal treasurers in
the assemblyman‘s locality. It has been further reported that "Congressional Pork Barrel"
projects under the SLDP also began to cover not only public works projects, or so- called
"hard projects", but also "soft projects", 21 or non-public works projects such as those which
would fall under the categories of, among others, education, health and livelihood. 22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with lump-
sum appropriations of ₱480 Million and ₱240 Million, respectively, for the funding of
development projects in the Mindanao and Visayas areas in 1989. It has been
documented23 that the clamor raised by the Senators and the Luzon legislators for a similar
funding, prompted the creation of the "Countrywide Development Fund" (CDF) which was
integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion to cover "small local
infrastructure and other priority community projects."
Under the GAAs for the years 1991 and 1992, 25 CDF funds were, with the approval of the
President, to be released directly to the implementing agencies but "subject to the
submission of the required list of projects and activities."Although the GAAs from 1990 to
1992 were silent as to the amounts of allocations of the individual legislators, as well as
their participation in the identification of projects, it has been reported 26 that by 1992,
Representatives were receiving ₱12.5 Million each in CDF funds, while Senators were
receiving ₱18 Million each, without any limitation or qualification, and that they could
identify any kind of project, from hard or infrastructure projects such as roads, bridges, and
buildings to "soft projects" such as textbooks, medicines, and scholarships. 27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was
to be made upon the submission of the list of projects and activities identified by, among
others, individual legislators. For the first time, the 1993 CDF Article included an allocation
for the Vice-President.29 As such, Representatives were allocated ₱12.5 Million each in CDF
funds, Senators, ₱18 Million each, and the Vice-President, ₱20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition, however, the
Department of Budget and Management (DBM) was directed to submit reports to the
Senate Committee on Finance and the House Committee on Appropriations on the releases
made from the funds.33
Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation
with the implementing agency concerned, were directed to submit to the DBM the list of
50% of projects to be funded from their respective CDF allocations which shall be duly
endorsed by (a) the Senate President and the Chairman of the Committee on Finance, in the
case of the Senate, and (b) the Speaker of the House of Representatives and the Chairman
of the Committee on Appropriations, in the case of the House of Representatives; while the
list for the remaining 50% was to be submitted within six (6) months thereafter. The same
article also stated that the project list, which would be published by the DBM, 35 "shall be the
basis for the release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."
The following year, or in 1998,36 the foregoing provisions regarding the required lists and
endorsements were reproduced, except that the publication of the project list was no
longer required as the list itself sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other
forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA
(called "Congressional Insertions" or "CIs") in order to perpetuate the ad ministration‘s
political agenda.37 It has been articulated that since CIs "formed part and parcel of the
budgets of executive departments, they were not easily identifiable and were thus harder to
monitor." Nonetheless, the lawmakers themselves as well as the finance and budget officials
of the implementing agencies, as well as the DBM, purportedly knew about the
insertions.38 Examples of these CIs are the Department of Education (DepEd) School Building
Fund, the Congressional Initiative Allocations, the Public Works Fund, the El Niño Fund, and
the Poverty Alleviation Fund.39 The allocations for the School Building Fund, particularly,
―shall be made upon prior consultation with the representative of the legislative district
concerned.”40 Similarly, the legislators had the power to direct how, where and when these
appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs,
namely, the "Food Security Program Fund," 43 the "Lingap Para Sa Mahihirap Program
Fund,"44 and the "Rural/Urban Development Infrastructure Program Fund," 45 all of which
contained a special provision requiring "prior consultation" with the Member s of Congress
for the release of the funds.
It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared
in the GAA. The requirement of "prior consultation with the respective Representative of
the District" before PDAF funds were directly released to the implementing agency
concerned was explicitly stated in the 2000 PDAF Article. Moreover, realignment of funds to
any expense category was expressly allowed, with the sole condition that no amount shall
be used to fund personal services and other personnel benefits. 47 The succeeding PDAF
provisions remained the same in view of the re-enactment 48 of the 2000 GAA for the year
2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely contained a single special
provision ordering the release of the funds directly to the implementing agency or local
government unit concerned, without further qualifications. The following year, 2003, 50 the
same single provision was present, with simply an expansion of purpose and express
authority to realign. Nevertheless, the provisions in the 2003 budgets of the Department of
Public Works and Highways51 (DPWH) and the DepEd52 required prior consultation with
Members of Congress on the aspects of implementation delegation and project list
submission, respectively. In 2004, the 2003 GAA was re-enacted. 53
In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs
and projects under the ten point agenda of the national government and shall be released
directly to the implementing agencies." It also introduced the program menu
concept,55 which is essentially a list of general programs and implementing agencies from
which a particular PDAF project may be subsequently chosen by the identifying authority.
The 2005 GAA was re-enacted56 in 2006 and hence, operated on the same bases. In similar
regard, the program menu concept was consistently integrated into the
2007,57 2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific
amounts allocated for the individual legislators, as well as their participation in the proposal
and identification of PDAF projects to be funded. In contrast to the PDAF Articles, however,
the provisions under the DepEd School Building Program and the DPWH budget, similar to
its predecessors, explicitly required prior consultation with the concerned Member of
Congress61 anent certain aspects of project implementation.
Significantly, it was during this era that provisions which allowed formal participation of
non-governmental organizations (NGO) in the implementation of government projects were
introduced. In the Supplemental Budget for 2006, with respect to the appropriation for
school buildings, NGOs were, by law, encouraged to participate. For such purpose, the law
stated that "the amount of at least ₱250 Million of the ₱500 Million allotted for the
construction and completion of school buildings shall be made available to NGOs including
the Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for its
"Operation Barrio School" program, with capability and proven track records in the
construction of public school buildings x x x." 62 The same allocation was made available to
NGOs in the 2007 and 2009 GAAs under the DepEd Budget. 63 Also, it was in 2007 that the
Government Procurement Policy Board64 (GPPB) issued Resolution No. 12-2007 dated June
29, 2007 (GPPB Resolution 12-2007), amending the implementing rules and regulations 65 of
RA 9184,66 the Government Procurement Reform Act, to include, as a form of negotiated
procurement,67 the procedure whereby the Procuring Entity 68 (the implementing agency)
may enter into a memorandum of agreement with an NGO, provided that "an appropriation
law or ordinance earmarks an amount to be specifically contracted out to NGOs." 69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF Articles, the 2011 70 PDAF Article
included an express statement on lump-sum amounts allocated for individual legislators and
the Vice-President: Representatives were given ₱70 Million each, broken down into ₱40
Million for "hard projects" and ₱30 Million for "soft projects"; while ₱200 Million was given
to each Senator as well as the Vice-President, with a ₱100 Million allocation each for "hard"
and "soft projects." Likewise, a provision on realignment of funds was included, but with the
qualification that it may be allowed only once. The same provision also allowed the
Secretaries of Education, Health, Social Welfare and Development, Interior and Local
Government, Environment and Natural Resources, Energy, and Public Works and Highways
to realign PDAF Funds, with the further conditions that: (a) realignment is within the same
implementing unit and same project category as the original project, for infrastructure
projects; (b) allotment released has not yet been obligated for the original scope of work,
and (c) the request for realignment is with the concurrence of the legislator concerned. 71
In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or
designation of beneficiaries shall conform to the priority list, standard or design prepared by
each implementing agency (priority list requirement) x x x." However, as practiced, it would
still be the individual legislator who would choose and identify the project from the said
priority list.74
Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012
and 2013 PDAF Articles; but the allocation for the Vice-President, which was pegged at ₱200
Million in the 2011 GAA, had been deleted. In addition, the 2013 PDAF Article now allowed
LGUs to be identified as implementing agencies if they have the technical capability to
implement the projects.77 Legislators were also allowed to identify programs/projects,
except for assistance to indigent patients and scholarships, outside of his legislative district
provided that he secures the written concurrence of the legislator of the intended outside-
district, endorsed by the Speaker of the House. 78 Finally, any realignment of PDAF funds,
modification and revision of project identification, as well as requests for release of funds,
were all required to be favorably endorsed by the House Committee on Appropriations and
the Senate Committee on Finance, as the case may be. 79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with lump-sum, discretionary
funds of Members of Congress, the present cases and the recent controversies on the
matter have, however, shown that the term‘s usage has expanded to include certain funds
of the President such as the Malampaya Funds and the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special fund under Section 8 80 of
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos)
on March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special
fund to help intensify, strengthen, and consolidate government efforts relating to the
exploration, exploitation, and development of indigenous energy resources vital to
economic growth.82 Due to the energy-related activities of the government in the
Malampaya natural gas field in Palawan, or the "Malampaya Deep Water Gas-to-Power
Project",83 the special fund created under PD 910 has been currently labeled as Malampaya
Funds.
On the other hand the Presidential Social Fund was created under Section 12, Title IV 84 of PD
1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD
1869 was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he
amended PD 1869 and accordingly issued PD 1993 on October 31, 1985, 86 amending Section
1287 of the former law. As it stands, the Presidential Social Fund has been described as a
special funding facility managed and administered by the Presidential Management Staff
through which the President provides direct assistance to priority programs and projects not
funded under the regular budget. It is sourced from the share of the government in the
aggregate gross earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased tremendously, 89 owing in
no small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support.90 It was in 1996 when the first controversy surrounding the "Pork
Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an
anonymous source, "blew the lid on the huge sums of government money that regularly
went into the pockets of legislators in the form of kickbacks." 91 He said that "the kickbacks
were ‘SOP‘ (standard operating procedure) among legislators and ranged from a low 19
percent to a high 52 percent of the cost of each project, which could be anything from
dredging, rip rapping, sphalting, concreting, and construction of school buildings." 92 "Other
sources of kickbacks that Candazo identified were public funds intended for medicines and
textbooks. A few days later, the tale of the money trail became the banner story of the
Philippine Daily Inquirer issue of August 13, 1996, accompanied by an illustration of a
roasted pig."93 "The publication of the stories, including those about congressional initiative
allocations of certain lawmakers, including ₱3.6 Billion for a Congressman, sparked public
outrage."94
Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as
enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any
pertinent evidentiary support that illegal misuse of PDAF in the form of kickbacks has
become a common exercise of unscrupulous Members of Congress," the petition was
dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some ₱10 Billion over
the past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects." 96 The investigation was spawned by
sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation – "JLN"
standing for Janet Lim Napoles (Napoles) – had swindled billions of pesos from the public
coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade.
While the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles‘ private accounts. 97 Thus, after its
investigation on the Napoles controversy, criminal complaints were filed before the Office of
the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers‘ chiefs -of-staff
or representatives, the heads and other officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles. 98
On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year
audit investigation99 covering the use of legislators' PDAF from 2007 to 2009, or during the
last three (3) years of the Arroyo administration. The purpose of the audit was to determine
the propriety of releases of funds under PDAF and the Various Infrastructures including
Local Projects (VILP)100 by the DBM, the application of these funds and the implementation
of projects by the appropriate implementing agencies and several government-owned-and-
controlled corporations (GOCCs).101 The total releases covered by the audit amounted to
₱8.374 Billion in PDAF and ₱32.664 Billion in VILP, representing 58% and 32%, respectively,
of the total PDAF and VILP releases that were found to have been made nationwide during
the audit period.102 Accordingly, the Co A‘s findings contained in its Report No. 2012-03 (CoA
Report), entitled "Priority Development Assistance Fund (PDAF) and Various Infrastructures
including Local Projects (VILP)," were made public, the highlights of which are as follows: 103
● Amounts released for projects identified by a considerable number of legislators
significantly exceeded their respective allocations.
● Amounts were released for projects outside of legislative districts of sponsoring members
of the Lower House.
● Total VILP releases for the period exceeded the total amount appropriated under the 2007
to 2009 GAAs.
● Infrastructure projects were constructed on private lots without these having been turned
over to the government.
● Significant amounts were released to implementing agencies without the latter‘s
endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.
● Implementation of most livelihood projects was not undertaken by the implementing
agencies themselves but by NGOs endorsed by the proponent legislators to which the Funds
were transferred.
● The funds were transferred to the NGOs in spite of the absence of any appropriation law
or ordinance.
● Selection of the NGOs were not compliant with law and regulations.
● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two
(772) projects amount to ₱6.156 Billion were either found questionable, or submitted
questionable/spurious documents, or failed to liquidate in whole or in part their utilization
of the Funds.
● Procurement by the NGOs, as well as some implementing agencies, of goods and services
reportedly used in the projects were not compliant with law.
As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million
from royalties in the operation of the Malampaya gas project off Palawan province intended
for agrarian reform beneficiaries has gone into a dummy NGO." 104 According to incumbent
CoA Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in
the process of preparing "one consolidated report" on the Malampaya Funds. 105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the "Pork
Barrel System" be declared unconstitutional. To recount, the relevant procedural
antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social
Justice Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of
Court (Alcantara Petition), seeking that the "Pork Barrel System" be declared
unconstitutional, and a writ of prohibition be issued permanently restraining respondents
Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective capacities as the
incumbent Senate President and Speaker of the House of Representatives, from further
taking any steps to enact legislation appropriating funds for the "Pork Barrel System," in
whatever form and by whatever name it may be called, and from approving further releases
pursuant thereto.106 The Alcantara Petition was docketed as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez,
Reuben M. Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr.
(Villegas) filed an Urgent Petition For Certiorari and Prohibition With Prayer For The
Immediate Issuance of Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction dated August 27, 2013 under Rule 65 of the Rules of Court (Belgica Petition),
seeking that the annual "Pork Barrel System," presently embodied in the provisions of the
GAA of 2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum,
discretionary funds, such as the Malampaya Funds and the Presidential Social Fund, 107 be
declared unconstitutional and null and void for being acts constituting grave abuse of
discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa,
Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their respective capacities
as the incumbent Executive Secretary, Secretary of the Department of Budget and
Management (DBM), and National Treasurer, or their agents, for them to immediately cease
any expenditure under the aforesaid funds. Further, they pray that the Court order the
foregoing respondents to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to
2013, specifying the use of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto"; and (b) "the use of the Executive‘s lump-sum,
discretionary funds, including the proceeds from the x x x Malampaya Funds and
remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity
and the recipient entities or individuals, and all pertinent data thereto." 108 Also, they pray for
the "inclusion in budgetary deliberations with the Congress of all presently off-budget,
lump-sum, discretionary funds including, but not limited to, proceeds from the Malampaya
Funds and remittances from the PAGCOR."109 The Belgica Petition was docketed as G.R. No.
208566.110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a
Petition dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared
unconstitutional, and a cease and desist order be issued restraining President Benigno
Simeon S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to
Members of Congress and, instead, allow their release to fund priority projects identified
and approved by the Local Development Councils in consultation with the executive
departments, such as the DPWH, the Department of Tourism, the Department of Health, the
Department of Transportation, and Communication and the National Economic
Development Authority.111 The Nepomuceno Petition was docketed as UDK-14951. 112
On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all
cases; (b) requiring public respondents to comment on the consolidated petitions; (c) issuing
a TRO (September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive
Secretary, or any of the persons acting under their authority from releasing (1) the
remaining PDAF allocated to Members of Congress under the GAA of 2013, and (2)
Malampaya Funds under the phrase "for such other purposes as may be hereafter directed
by the President" pursuant to Section 8 of PD 910 but not for the purpose of "financing
energy resource development and exploitation programs and projects of the government‖
under the same provision; and (d) setting the consolidated cases for Oral Arguments on
October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated
Comment (Comment) of even date before the Court, seeking the lifting, or in the alternative,
the partial lifting with respect to educational and medical assistance purposes, of the Court‘s
September 10, 2013 TRO, and that the consolidated petitions be dismissed for lack of
merit.113
On September 24, 2013, the Court issued a Resolution of even date directing petitioners to
reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to the
Comment: (a) on September 30, 2013, Villegas filed a separate Reply dated September 27,
2013 (Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated September
30, 2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October
1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be
observed by the parties for the Oral Arguments scheduled on October 8, 2013. In view of
the technicality of the issues material to the present cases, incumbent Solicitor General
Francis H. Jardeleza (Solicitor General) was directed to bring with him during the Oral
Arguments representative/s from the DBM and Congress who would be able to competently
and completely answer questions related to, among others, the budgeting process and its
implementation. Further, the CoA Chairperson was appointed as amicus curiae and thereby
requested to appear before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court
directed the parties to submit their respective memoranda within a period of seven (7) days,
or until October 17, 2013, which the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the following are the
main issues for the Court‘s resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and
justiciable controversy; (b) the issues raised in the consolidated petitions are matters of
policy not subject to judicial review; (c) petitioners have legal standing to sue; and (d) the
Court‘s Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888,
entitled "Philippine Constitution Association v. Enriquez" 114 (Philconsa) and Decision dated
April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v.
Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of
constitutionality of the "Pork Barrel System" under the principles of res judicata and stare
decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar
thereto are unconstitutional considering that they violate the principles of/constitutional
provisions on (a) separation of powers; (b) non-delegability of legislative power; (c) checks
and balances; (d) accountability; (e) political dynasties; and (f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as may be hereafter directed
by the President" under Section 8 of PD 910, 116 relating to the Malampaya Funds, and (b) "to
finance the priority infrastructure development projects and to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines" under Section 12 of PD 1869, as amended by PD
1993, relating to the Presidential Social Fund, are unconstitutional insofar as they constitute
undue delegations of legislative power.
These main issues shall be resolved in the order that they have been stated. In addition, the
Court shall also tackle certain ancillary issues as prompted by the present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the
constitutionality or validity of a law or governmental act may be heard and decided by the
Court unless there is compliance with the legal requisites for judicial inquiry, 117 namely: (a)
there must be an actual case or controversy calling for the exercise of judicial power; (b) the
person challenging the act must have the standing to question the validity of the subject act
or issuance; (c) the question of constitutionality must be raised at the earliest opportunity ;
and (d) the issue of constitutionality must be the very lis mota of the case. 118 Of these
requisites, case law states that the first two are the most important 119 and, therefore, shall
be discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case or
controversy.120 This is embodied in Section 1, Article VIII of the 1987 Constitution which
pertinently states that "judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable x x x."
Jurisprudence provides that an actual case or controversy is one which "involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. 121 In other words, "there
must be a contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence."122 Related to the requirement of an actual case or
controversy is the requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual challenging
it. It is a prerequisite that something had then been accomplished or performed by either
branch before a court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to itself as a result of the challenged
action."123 "Withal, courts will decline to pass upon constitutional issues through advisory
opinions, bereft as they are of authority to resolve hypothetical or moot questions." 124
Based on these principles, the Court finds that there exists an actual and justiciable
controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions
of the parties on the constitutionality of the "Pork Barrel System." Also, the questions in
these consolidated cases are ripe for adjudication since the challenged funds and the
provisions allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for the
Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund –
are currently existing and operational; hence, there exists an immediate or threatened
injury to petitioners as a result of the unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto had been
rendered moot and academic by the reforms undertaken by respondents. A case becomes
moot when there is no more actual controversy between the parties or no useful purpose
can be served in passing upon the merits. 125 Differing from this description, the Court
observes that respondents‘ proposed line-item budgeting scheme would not terminate the
controversy nor diminish the useful purpose for its resolution since said reform is geared
towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct subject
matter, remains legally effective and existing. Neither will the President‘s declaration that he
had already "abolished the PDAF" render the issues on PDAF moot precisely because the
Executive branch of government has no constitutional authority to nullify or annul its legal
existence. By constitutional design, the annulment or nullification of a law may be done
either by Congress, through the passage of a repealing law, or by the Court, through a
declaration of unconstitutionality. Instructive on this point is the following exchange
between Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during
the Oral Arguments:126
Justice Carpio: The President has taken an oath to faithfully execute the law, 127 correct?
Solicitor General Jardeleza: Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to implement the General Appropriations
Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of
the PDAF, the President has a duty to execute the laws but in the face of the outrage over
PDAF, the President was saying, "I am not sure that I will continue the release of the soft
projects," and that started, Your Honor. Now, whether or not that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has
the power to stop the releases in the meantime, to investigate, and that is Section 38 of
Chapter 5 of Book 6 of the Revised Administrative Code 128 x x x. So at most the President can
suspend, now if the President believes that the PDAF is unconstitutional, can he just refuse
to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of
the PDAF because of the CoA Report, because of the reported irregularities and this Court
can take judicial notice, even outside, outside of the COA Report, you have the report of the
whistle-blowers, the President was just exercising precisely the duty ….
xxxx
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies,
you stop and investigate, and prosecute, he has done that. But, does that mean that PDAF
has been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a
law to repeal it, or this Court declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot
and academic‘ principle is not a magical formula that can automatically dissuade the Court
in resolving a case." The Court will decide cases, otherwise moot, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth,
the case is capable of repetition yet evading review. 129
The applicability of the first exception is clear from the fundamental posture of petitioners –
they essentially allege grave violations of the Constitution with respect to, inter alia, the
principles of separation of powers, non-delegability of legislative power, checks and
balances, accountability and local autonomy.
The applicability of the second exception is also apparent from the nature of the interests
involved
– the constitutionality of the very system within which significant amounts of public funds
have been and continue to be utilized and expended undoubtedly presents a situation of
exceptional character as well as a matter of paramount public interest. The present
petitions, in fact, have been lodged at a time when the system‘s flaws have never before
been magnified. To the Court‘s mind, the coalescence of the CoA Report, the accounts of
numerous whistle-blowers, and the government‘s own recognition that reforms are needed
"to address the reported abuses of the PDAF" 130 demonstrates a prima facie pattern of
abuse which only underscores the importance of the matter. It is also by this finding that the
Court finds petitioners‘ claims as not merely theorized, speculative or hypothetical. Of note
is the weight accorded by the Court to the findings made by the CoA which is the
constitutionally-mandated audit arm of the government. In Delos Santos v. CoA, 131 a recent
case wherein the Court upheld the CoA‘s disallowance of irregularly disbursed PDAF funds, it
was emphasized that:
The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds.
It is tasked to be vigilant and conscientious in safeguarding the proper use of the
government's, and ultimately the people's, property. The exercise of its general audit power
is among the constitutional mechanisms that gives life to the check and balance system
inherent in our form of government.
It is the general policy of the Court to sustain the decisions of administrative authorities,
especially one which is constitutionally-created, such as the CoA, not only on the basis of the
doctrine of separation of powers but also for their presumed expertise in the laws they are
entrusted to enforce. Findings of administrative agencies are accorded not only respect but
also finality when the decision and order are not tainted with unfairness or arbitrariness
that would amount to grave abuse of discretion. It is only when the CoA has acted without
or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, that this Court entertains a petition questioning its rulings.
x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and justiciable
controversy in these cases, the Court deems the findings under the CoA Report to be
sufficient.
The Court also finds the third exception to be applicable largely due to the practical need for
a definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments,
the CoA Chairperson estimates that thousands of notices of disallowances will be issued by
her office in connection with the findings made in the CoA Report. In this relation, Associate
Justice Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these would
eventually find their way to the courts. 132 Accordingly, there is a compelling need to
formulate controlling principles relative to the issues raised herein in order to guide the
bench, the bar, and the public, not just for the expeditious resolution of the anticipated
disallowance cases, but more importantly, so that the government may be guided on how
public funds should be utilized in accordance with constitutional principles.
Finally, the application of the fourth exception is called for by the recognition that the
preparation and passage of the national budget is, by constitutional imprimatur, an affair of
annual occurrence.133 The relevance of the issues before the Court does not cease with the
passage of a "PDAF -free budget for 2014." 134 The evolution of the "Pork Barrel System," by
its multifarious iterations throughout the course of history, lends a semblance of truth to
petitioners‘ claim that "the same dog will just resurface wearing a different collar." 135 In
Sanlakas v. Executive Secretary,136 the government had already backtracked on a previous
course of action yet the Court used the "capable of repetition but evading review" exception
in order "to prevent similar questions from re- emerging." 137 The situation similarly holds
true to these cases. Indeed, the myriad of issues underlying the manner in which certain
public funds are spent, if not resolved at this most opportune time, are capable of repetition
and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and controversies‖ carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political
question doctrine which, under the classic formulation of Baker v. Carr, 139 applies when
there is found, among others, "a textually demonstrable constitutional commitment of the
issue to a coordinate political department," "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." Cast against this light,
respondents submit that the "the political branches are in the best position not only to
perform budget-related reforms but also to do them in response to the specific demands of
their constituents" and, as such, "urge the Court not to impose a solution at this stage." 140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not present political but legal
questions which are within its province to resolve. A political question refers to "those
questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the Government. It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure." 141 The intrinsic constitutionality of
the "Pork Barrel System" is not an issue dependent upon the wisdom of the political
branches of government but rather a legal one which the Constitution itself has commanded
the Court to act upon. Scrutinizing the contours of the system along constitutional lines is a
task that the political branches of government are incapable of rendering precisely because
it is an exercise of judicial power. More importantly, the present Constitution has not only
vested the Judiciary the right to exercise judicial power but essentially makes it a duty to
proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer:
"The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law. It includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government." In
Estrada v. Desierto,142 the expanded concept of judicial power under the 1987 Constitution
and its effect on the political question doctrine was explained as follows: 143
To a great degree, the 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable and enforceable but also to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of government.
Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed
against the exercise of its jurisdiction. With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing.
x x x (Emphases supplied)
It must also be borne in mind that ― when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in
reality nullify or invalidate an act of the legislature or the executive, but only asserts the
solemn and sacred obligation assigned to it by the Constitution." 144 To a great extent, the
Court is laudably cognizant of the reforms undertaken by its co-equal branches of
government. But it is by constitutional force that the Court must faithfully perform its duty.
Ultimately, it is the Court‘s avowed intention that a resolution of these cases would not
arrest or in any manner impede the endeavors of the two other branches but, in fact, help
ensure that the pillars of change are erected on firm constitutional grounds. After all, it is in
the best interest of the people that each great branch of government, within its own sphere,
contributes its share towards achieving a holistic and genuine solution to the problems of
society. For all these reasons, the Court cannot heed respondents‘ plea for judicial restraint.
C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions. Unless a person is injuriously affected in any of his constitutional
rights by the operation of statute or ordinance, he has no standing." 145
Petitioners have come before the Court in their respective capacities as citizen-taxpayers
and accordingly, assert that they "dutifully contribute to the coffers of the National
Treasury."146 Clearly, as taxpayers, they possess the requisite standing to question the
validity of the existing "Pork Barrel System" under which the taxes they pay have been and
continue to be utilized. It is undeniable that petitioners, as taxpayers, are bound to suffer
from the unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers
have been allowed to sue where there is a claim that public funds are illegally disbursed or
that public money is being deflected to any improper purpose, or that public funds are
wasted through the enforcement of an invalid or unconstitutional law, 147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that
the issues they have raised may be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public interest." 148 The CoA
Chairperson‘s statement during the Oral Arguments that the present controversy involves
"not merely a systems failure" but a "complete breakdown of controls" 149 amplifies, in
addition to the matters above-discussed, the seriousness of the issues involved herein.
Indeed, of greater import than the damage caused by the illegal expenditure of public funds
is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid
statute.150 All told, petitioners have sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or
simply, stare decisis which means "follow past precedents and do not disturb what has been
settled") are general procedural law principles which both deal with the effects of previous
but factually similar dispositions to subsequent cases. For the cases at bar, the Court
examines the applicability of these principles in relation to its prior rulings in Philconsa and
LAMP.
The focal point of res judicata is the judgment. The principle states that a judgment on the
merits in a previous case rendered by a court of competent jurisdiction would bind a
subsequent case if, between the first and second actions, there exists an identity of parties,
of subject matter, and of causes of action. 151 This required identity is not, however,
attendant hereto since Philconsa and LAMP, respectively involved constitutional challenges
against the 1994 CDF Article and 2004 PDAF Article, whereas the cases at bar call for a
broader constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP is
essentially a dismissal based on a procedural technicality – and, thus, hardly a judgment on
the merits – in that petitioners therein failed to present any "convincing proof x x x showing
that, indeed, there were direct releases of funds to the Members of Congress, who actually
spend them according to their sole discretion" or "pertinent evidentiary support to
demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a common
exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no
need to review or reverse the standing pronouncements in the said case." Hence, for the
foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP cases are
concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The principle,
entrenched under Article 8152 of the Civil Code, evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be doctrinally applied to those that
follow if the facts are substantially the same, even though the parties may be different. It
proceeds from the first principle of justice that, absent any powerful countervailing
considerations, like cases ought to be decided alike. Thus, where the same questions
relating to the same event have been put forward by the parties similarly situated as in a
previous case litigated and decided by a competent court, the rule of stare decisis is a bar to
any attempt to re-litigate the same issue. 153
Philconsa was the first case where a constitutional challenge against a Pork Barrel provision,
i.e., the 1994 CDF Article, was resolved by the Court. To properly understand its context,
petitioners‘ posturing was that "the power given to the Members of Congress to propose
and identify projects and activities to be funded by the CDF is an encroachment by the
legislature on executive power, since said power in an appropriation act is in
implementation of the law" and that "the proposal and identification of the projects do not
involve the making of laws or the repeal and amendment thereof, the only function given to
the Congress by the Constitution."154 In deference to the foregoing submissions, the Court
reached the following main conclusions: one, under the Constitution, the power of
appropriation, or the "power of the purse," belongs to Congress; two, the power of
appropriation carries with it the power to specify the project or activity to be funded under
the appropriation law and it can be detailed and as broad as Congress wants it to be; and,
three, the proposals and identifications made by Members of Congress are merely
recommendatory. At once, it is apparent that the Philconsa resolution was a limited
response to a separation of powers problem, specifically on the propriety of conferring post-
enactment identification authority to Members of Congress. On the contrary, the present
cases call for a more holistic examination of (a) the inter-relation between the CDF and
PDAF Articles with each other, formative as they are of the entire "Pork Barrel System" as
well as (b) the intra-relation of post-enactment measures contained within a particular CDF
or PDAF Article, including not only those related to the area of project identification but also
to the areas of fund release and realignment. The complexity of the issues and the broader
legal analyses herein warranted may be, therefore, considered as a powerful countervailing
reason against a wholesale application of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis.
As may be deduced from the main conclusions of the case, Philconsa‘s fundamental premise
in allowing Members of Congress to propose and identify of projects would be that the said
identification authority is but an aspect of the power of appropriation which has been
constitutionally lodged in Congress. From this premise, the contradictions may be easily
seen. If the authority to identify projects is an aspect of appropriation and the power of
appropriation is a form of legislative power thereby lodged in Congress, then it follows that:
(a) it is Congress which should exercise such authority, and not its individual Members; (b)
such authority must be exercised within the prescribed procedure of law passage and,
hence, should not be exercised after the GAA has already been passed; and (c) such
authority, as embodied in the GAA, has the force of law and, hence, cannot be merely
recommendatory. Justice Vitug‘s Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to
appropriate funds for such specific projects as it may be minded; to give that authority,
however, to the individual members of Congress in whatever guise, I am afraid, would be
constitutionally impermissible." As the Court now largely benefits from hindsight and
current findings on the matter, among others, the CoA Report, the Court must partially
abandon its previous ruling in Philconsa insofar as it validated the post-enactment
identification authority of Members of Congress on the guise that the same was merely
recommendatory. This postulate raises serious constitutional inconsistencies which cannot
be simply excused on the ground that such mechanism is "imaginative as it is innovative."
Moreover, it must be pointed out that the recent case of Abakada Guro Party List v.
Purisima155 (Abakada) has effectively overturned Philconsa‘s allowance of post-enactment
legislator participation in view of the separation of powers principle. These constitutional
inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing
section of this Decision.
As for LAMP, suffice it to restate that the said case was dismissed on a procedural
technicality and, hence, has not set any controlling doctrine susceptible of current
application to the substantive issues in these cases. In fine, stare decisis would not apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of these cases, it must first
define the terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork
Barrel" as they are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative
and Executive branches of government to accumulate lump-sum public funds in their offices
with unchecked discretionary powers to determine its distribution as political
largesse."156 They assert that the following elements make up the Pork Barrel System: (a)
lump-sum funds are allocated through the appropriations process to an individual officer;
(b) the officer is given sole and broad discretion in determining how the funds will be used
or expended; (c) the guidelines on how to spend or use the funds in the appropriation are
either vague, overbroad or inexistent; and (d) projects funded are intended to benefit a
definite constituency in a particular part of the country and to help the political careers of
the disbursing official by yielding rich patronage benefits. 157 They further state that the Pork
Barrel System is comprised of two (2) kinds of discretionary public funds: first, the
Congressional (or Legislative) Pork Barrel, currently known as the PDAF; 158 and, second, the
Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and
the Presidential Social Fund under PD 1869, as amended by PD 1993. 159
Considering petitioners‘ submission and in reference to its local concept and legal history,
the Court defines the Pork Barrel System as the collective body of rules and practices that
govern the manner by which lump-sum, discretionary funds, primarily intended for local
projects, are utilized through the respective participations of the Legislative and Executive
branches of government, including its members. The Pork Barrel System involves two (2)
kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the fund’s utilization through
various post-enactment measures and/or practices. In particular, petitioners consider the
PDAF, as it appears under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a
post-enactment measure that allows individual legislators to wield a collective power; 160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For
reasons earlier stated,161 the Court shall delimit the use of such term to refer only to the
Malampaya Funds and the Presidential Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the substantive issues
of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v.
Electoral Commission,162 it means that the "Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government."163 To the legislative branch of government, through
Congress,164 belongs the power to make laws; to the executive branch of government,
through the President,165 belongs the power to enforce laws; and to the judicial branch of
government, through the Court, 166 belongs the power to interpret laws. Because the three
great powers have been, by constitutional design, ordained in this respect, "each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere." 167 Thus, "the legislature has no authority to execute
or construe the law, the executive has no authority to make or construe the law, and the
judiciary has no power to make or execute the law." 168 The principle of separation of powers
and its concepts of autonomy and independence stem from the notion that the powers of
government must be divided to avoid concentration of these powers in any one branch; the
division, it is hoped, would avoid any single branch from lording its power over the other
branches or the citizenry.169 To achieve this purpose, the divided power must be wielded by
co-equal branches of government that are equally capable of independent action in
exercising their respective mandates. Lack of independence would result in the inability of
one branch of government to check the arbitrary or self-interest assertions of another or
others.170
Broadly speaking, there is a violation of the separation of powers principle when one branch
of government unduly encroaches on the domain of another. US Supreme Court decisions
instruct that the principle of separation of powers may be violated in two (2) ways: firstly,
"one branch may interfere impermissibly with the other’s performance of its constitutionally
assigned function";171 and "alternatively, the doctrine may be violated when one branch
assumes a function that more properly is entrusted to another." 172 In other words, there is a
violation of the principle when there is impermissible (a) interference with and/or (b)
assumption of another department‘s functions.
The enforcement of the national budget, as primarily contained in the GAA, is indisputably a
function both constitutionally assigned and properly entrusted to the Executive branch of
government. In Guingona, Jr. v. Hon. Carague 173 (Guingona, Jr.), the Court explained that the
phase of budget execution "covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans for individual activities," the
"regulation and release of funds" as well as all "other related activities" that comprise the
budget execution cycle.174 This is rooted in the principle that the allocation of power in the
three principal branches of government is a grant of all powers inherent in them. 175 Thus,
unless the Constitution provides otherwise, the Executive department should exclusively
exercise all roles and prerogatives which go into the implementation of the national budget
as provided under the GAA as well as any other appropriation law.
In view of the foregoing, the Legislative branch of government, much more any of its
members, should not cross over the field of implementing the national budget since, as
earlier stated, the same is properly the domain of the Executive. Again, in Guingona, Jr., the
Court stated that "Congress enters the picture when it deliberates or acts on the budget
proposals of the President. Thereafter, Congress, "in the exercise of its own judgment and
wisdom, formulates an appropriation act precisely following the process established by the
Constitution, which specifies that no money may be paid from the Treasury except in
accordance with an appropriation made by law." Upon approval and passage of the GAA,
Congress‘ law -making role necessarily comes to an end and from there the Executive‘s role
of implementing the national budget begins. So as not to blur the constitutional boundaries
between them, Congress must "not concern it self with details for implementation by the
Executive."176
The foregoing cardinal postulates were definitively enunciated in Abakada where the Court
held that "from the moment the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the implementation or enforcement of
the law violates the principle of separation of powers and is thus unconstitutional." 177 It
must be clarified, however, that since the restriction only pertains to "any role in the
implementation or enforcement of the law," Congress may still exercise its oversight
function which is a mechanism of checks and balances that the Constitution itself allows. But
it must be made clear that Congress‘ role must be confined to mere oversight. Any post-
enactment-measure allowing legislator participation beyond oversight is bereft of any
constitutional basis and hence, tantamount to impermissible interference and/or
assumption of executive functions. As the Court ruled in Abakada: 178
Any post-enactment congressional measure x x x should be limited to scrutiny and
investigation.1âwphi1 In particular, congressional oversight must be confined to the
following:
(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before
and be heard by either of its Houses on any matter pertaining to their departments and its
power of confirmation; and
(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel – among others, the
2013 PDAF Article – "wrecks the assignment of responsibilities between the political
branches" as it is designed to allow individual legislators to interfere "way past the time it
should have ceased" or, particularly, "after the GAA is passed." 179 They state that the
findings and recommendations in the CoA Report provide "an illustration of how absolute
and definitive the power of legislators wield over project implementation in complete
violation of the constitutional principle of separation of powers." 180 Further, they point out
that the Court in the Philconsa case only allowed the CDF to exist on the condition that
individual legislators limited their role to recommending projects and not if they actually
dictate their implementation.181

For their part, respondents counter that the separations of powers principle has not been
violated since the President maintains "ultimate authority to control the execution of the
GAA‖ and that he "retains the final discretion to reject" the legislators‘ proposals. 182 They
maintain that the Court, in Philconsa, "upheld the constitutionality of the power of
members of Congress to propose and identify projects so long as such proposal and
identification are recommendatory."183 As such, they claim that "everything in the Special
Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains
constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of all forms of Congressional
Pork Barrel would be the authority of legislators to participate in the post-enactment phases
of project implementation.
185 186
At its core, legislators – may it be through project lists,  prior consultations  or program
menus187 – have been consistently accorded post-enactment authority to identify the
projects they desire to be funded through various Congressional Pork Barrel allocations.
Under the 2013 PDAF Article, the statutory authority of legislators to identify projects post-
GAA may be construed from the import of Special Provisions 1 to 3 as well as the second
paragraph of Special Provision 4. To elucidate, Special Provision 1 embodies the program
menu feature which, as evinced from past PDAF Articles, allows individual legislators to
identify PDAF projects for as long as the identified project falls under a general program
listed in the said menu. Relatedly, Special Provision 2 provides that the implementing
agencies shall, within 90 days from the GAA is passed, submit to Congress a more detailed
priority list, standard or design prepared and submitted by implementing agencies from
which the legislator may make his choice. The same provision further authorizes legislators
to identify PDAF projects outside his district for as long as the representative of the district
concerned concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects
refer to "projects to be identified by legislators" 188 and thereunder provides the allocation
limit for the total amount of projects identified by each legislator. Finally, paragraph 2 of
Special Provision 4 requires that any modification and revision of the project identification
"shall be submitted to the House Committee on Appropriations and the Senate Committee
on Finance for favorable endorsement to the DBM or the implementing agency, as the case
may be." From the foregoing special provisions, it cannot be seriously doubted that
legislators have been accorded post-enactment authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been accorded post-
enactment authority in the areas of fund release and realignment. Under the 2013 PDAF
Article, the statutory authority of legislators to participate in the area of fund release
through congressional committees is contained in Special Provision 5 which explicitly states
that "all request for release of funds shall be supported by the documents prescribed under
Special Provision No. 1 and favorably endorsed by House Committee on Appropriations and
the Senate Committee on Finance, as the case may be"; while their statutory authority to
participate in the area of fund realignment is contained in: first , paragraph 2, Special
Provision 4189 which explicitly state s, among others, that "any realignment of funds shall be
submitted to the House Committee on Appropriations and the Senate Committee on
Finance for favorable endorsement to the DBM or the implementing agency, as the case
may be‖ ; and, second , paragraph 1, also of Special Provision 4 which authorizes the
"Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and
Employment, Public Works and Highways, Social Welfare and Development and Trade and
Industry190 x x x to approve realignment from one project/scope to another within the
allotment received from this Fund, subject to among others (iii) the request is with the
concurrence of the legislator concerned."
Clearly, these post-enactment measures which govern the areas of project identification,
fund release and fund realignment are not related to functions of congressional oversight
and, hence, allow legislators to intervene and/or assume duties that properly belong to the
sphere of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one
form or another, authorized to participate in – as Guingona, Jr. puts it – "the various
operational aspects of budgeting," including "the evaluation of work and financial plans for
individual activities" and the "regulation and release of funds" in violation of the separation
of powers principle. The fundamental rule, as categorically articulated in Abakada, cannot
be overstated – from the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of powers and is thus
unconstitutional.191 That the said authority is treated as merely recommendatory in nature
does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in
the implementation or enforcement of the law. Towards this end, the Court must therefore
abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on
the guise that the same is merely recommendatory and, as such, respondents‘ reliance on
the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to substantiate
their position that the identification authority of legislators is only of recommendatory
import. Quite the contrary, respondents – through the statements of the Solicitor General
during the Oral Arguments – have admitted that the identification of the legislator
constitutes a mandatory requirement before his PDAF can be tapped as a funding source,
thereby highlighting the indispensability of the said act to the entire budget execution
process:192
Justice Bernabe: Now, without the individual legislator’s identification of the project, can the
PDAF of the legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the identification of the project by the
individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there
is no identification.
xxxx
Justice Bernabe: Now, would you know of specific instances when a project was
implemented without the identification by the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no
specific examples. I would doubt very much, Your Honor, because to implement, there is a
need for a SARO and the NCA. And the SARO and the NCA are triggered by an identification
from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying
to a question, "How can a legislator make sure that he is able to get PDAF Funds?" It is
mandatory in the sense that he must identify, in that sense, Your Honor. Otherwise, if he
does not identify, he cannot avail of the PDAF Funds and his district would not be able to
have PDAF Funds, only in that sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well
as all other provisions of law which similarly allow legislators to wield any form of post-
enactment authority in the implementation or enforcement of the budget, unrelated to
congressional oversight, as violative of the separation of powers principle and thus
unconstitutional. Corollary thereto, informal practices, through which legislators have
effectively intruded into the proper phases of budget execution, must be deemed as acts of
grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded
the same unconstitutional treatment. That such informal practices do exist and have, in fact,
been constantly observed throughout the years has not been substantially disputed here. As
pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral
Arguments of these cases:193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM and two (2) Houses of
Congress, if we enforces the initial thought that I have, after I had seen the extent of this
research made by my staff, that neither the Executive nor Congress frontally faced the
question of constitutional compatibility of how they were engineering the budget process.
In fact, the words you have been using, as the three lawyers of the DBM, and both Houses of
Congress has also been using is surprise; surprised that all of these things are now surfacing.
In fact, I thought that what the 2013 PDAF provisions did was to codify in one section all the
past practice that had been done since 1991. In a certain sense, we should be thankful that
they are all now in the PDAF Special Provisions. x x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not have, whether through
formal measures written into the law or informal practices institutionalized in government
agencies, else the Executive department be deprived of what the Constitution has vested as
its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle, 194 legislative power shall be exclusively
exercised by the body to which the Constitution has conferred the same. In particular,
Section 1, Article VI of the 1987 Constitution states that such power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative and
referendum.195 Based on this provision, it is clear that only Congress, acting as a bicameral
body, and the people, through the process of initiative and referendum, may
constitutionally wield legislative power and no other. This premise embodies the principle of
non-delegability of legislative power, and the only recognized exceptions thereto would be:
(a) delegated legislative power to local governments which, by immemorial practice, are
allowed to legislate on purely local matters; 196 and (b) constitutionally-grafted exceptions
such as the authority of the President to, by law, exercise powers necessary and proper to
carry out a declared national policy in times of war or other national emergency, 197 or fix
within specified limits, and subject to such limitations and restrictions as Congress may
impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties
or imposts within the framework of the national development program of the
Government.198
Notably, the principle of non-delegability should not be confused as a restriction to delegate
rule-making authority to implementing agencies for the limited purpose of either filling up
the details of the law for its enforcement (supplementary rule-making) or ascertaining facts
to bring the law into actual operation (contingent rule-making). 199 The conceptual treatment
and limitations of delegated rule-making were explained in the case of People v.
Maceren200 as follows:
The grant of the rule-making power to administrative agencies is a relaxation of the principle
of separation of powers and is an exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated to promote the public
interest are necessary because of "the growing complexity of modern life, the multiplication
of the subjects of governmental regulations, and the increased difficulty of administering
the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power must be confined to
details for regulating the mode or proceeding to carry into effect the law as it has been
enacted. The power cannot be extended to amending or expanding the statutory
requirements or to embrace matters not covered by the statute. Rules that subvert the
statute cannot be sanctioned. (Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
enactment identification authority to individual legislators, violates the principle of non-
delegability since said legislators are effectively allowed to individually exercise the power of
appropriation, which – as settled in Philconsa – is lodged in Congress. 201 That the power to
appropriate must be exercised only through legislation is clear from Section 29(1), Article VI
of the 1987 Constitution which states that: "No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law." To understand what constitutes an
act of appropriation, the Court, in Bengzon v. Secretary of Justice and Insular
Auditor202 (Bengzon), held that the power of appropriation involves (a) the setting apart by
law of a certain sum from the public revenue for (b) a specified purpose. Essentially, under
the 2013 PDAF Article, individual legislators are given a personal lump-sum fund from which
they are able to dictate (a) how much from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. As these two (2) acts comprise the exercise
of the power of appropriation as described in Bengzon, and given that the 2013 PDAF Article
authorizes individual legislators to perform the same, undoubtedly, said legislators have
been conferred the power to legislate which the Constitution does not, however, allow.
Thus, keeping with the principle of non-delegability of legislative power, the Court hereby
declares the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which
contain the similar legislative identification feature as herein discussed, as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are intended to be kept separate and
distinct does not mean that they are absolutely unrestrained and independent of each
other. The Constitution has also provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government. 203
A prime example of a constitutional check and balance would be the President’s power to
veto an item written into an appropriation, revenue or tariff bill submitted to him by
Congress for approval through a process known as "bill presentment." The President‘s item-
veto power is found in Section 27(2), Article VI of the 1987 Constitution which reads as
follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which
he does not object.
The presentment of appropriation, revenue or tariff bills to the President, wherein he may
exercise his power of item-veto, forms part of the "single, finely wrought and exhaustively
considered, procedures" for law-passage as specified under the Constitution. 204 As stated in
Abakada, the final step in the law-making process is the "submission of the bill to the
President for approval. Once approved, it takes effect as law after the required
publication."205
Elaborating on the President‘s item-veto power and its relevance as a check on the
legislature, the Court, in Bengzon, explained that: 206
The former Organic Act and the present Constitution of the Philippines make the Chief
Executive an integral part of the law-making power. His disapproval of a bill, commonly
known as a veto, is essentially a legislative act. The questions presented to the mind of the
Chief Executive are precisely the same as those the legislature must determine in passing a
bill, except that his will be a broader point of view.
The Constitution is a limitation upon the power of the legislative department of the
government, but in this respect it is a grant of power to the executive department. The
Legislature has the affirmative power to enact laws; the Chief Executive has the negative
power by the constitutional exercise of which he may defeat the will of the Legislature. It
follows that the Chief Executive must find his authority in the Constitution. But in exercising
that authority he may not be confined to rules of strict construction or hampered by the
unwise interference of the judiciary. The courts will indulge every intendment in favor of the
constitutionality of a veto in the same manner as they will presume the constitutionality of
an act as originally passed by the Legislature. (Emphases supplied)
The justification for the President‘s item-veto power rests on a variety of policy goals such as
to prevent log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to
fortify the executive branch‘s role in the budgetary process. 208 In Immigration and
Naturalization Service v. Chadha, the US Supreme Court characterized the President‘s item-
power as "a salutary check upon the legislative body, calculated to guard the community
against the effects of factions, precipitancy, or of any impulse unfriendly to the public good,
which may happen to influence a majority of that body"; phrased differently, it is meant to
"increase the chances in favor of the community against the passing of bad laws, through
haste, inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily follows that there exists a
proper "item" which may be the object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the distinct and severable parts of
the appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the
Philippine Islands,210 the US Supreme Court characterized an item of appropriation as
follows:
An item of an appropriation bill obviously means an item which, in itself, is a specific
appropriation of money, not some general provision of law which happens to be put into an
appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President
may be able to exercise his power of item veto, must contain "specific appropriations of
money" and not only "general provisions" which provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an item
characterized by singular correspondence – meaning an allocation of a specified singular
amount for a specified singular purpose, otherwise known as a "line-item." 211 This treatment
not only allows the item to be consistent with its definition as a "specific appropriation of
money" but also ensures that the President may discernibly veto the same. Based on the
foregoing formulation, the existing Calamity Fund, Contingent Fund and the Intelligence
Fund, being appropriations which state a specified amount for a specific purpose, would
then be considered as "line- item" appropriations which are rightfully subject to item veto.
Likewise, it must be observed that an appropriation may be validly apportioned into
component percentages or values; however, it is crucial that each percentage or value must
be allocated for its own corresponding purpose for such component to be considered as a
proper line-item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation
may even have several related purposes that are by accounting and budgeting practice
considered as one purpose, e.g., MOOE (maintenance and other operating expenses), in
which case the related purposes shall be deemed sufficiently specific for the exercise of the
President‘s item veto power. Finally, special purpose funds and discretionary funds would
equally square with the constitutional mechanism of item-veto for as long as they follow the
rule on singular correspondence as herein discussed. Anent special purpose funds, it must
be added that Section 25(4), Article VI of the 1987 Constitution requires that the "special
appropriations bill shall specify the purpose for which it is intended, and shall be supported
by funds actually available as certified by the National Treasurer, or t o be raised by a
corresponding revenue proposal therein." Meanwhile, with respect to discretionary funds,
Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall be disbursed
only for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which merely provide
for a singular lump-sum amount to be tapped as a source of funding for multiple purposes.
Since such appropriation type necessitates the further determination of both the actual
amount to be expended and the actual purpose of the appropriation which must still be
chosen from the multiple purposes stated in the law, it cannot be said that the
appropriation law already indicates a "specific appropriation of money‖ and hence, without
a proper line-item which the President may veto. As a practical result, the President would
then be faced with the predicament of either vetoing the entire appropriation if he finds
some of its purposes wasteful or undesirable, or approving the entire appropriation so as
not to hinder some of its legitimate purposes. Finally, it may not be amiss to state that such
arrangement also raises non-delegability issues considering that the implementing authority
would still have to determine, again, both the actual amount to be expended and the actual
purpose of the appropriation. Since the foregoing determinations constitute the integral
aspects of the power to appropriate, the implementing authority would, in effect, be
exercising legislative prerogatives in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-
sum appropriation, the legislator‘s identification of the projects after the passage of the GAA
denies the President the chance to veto that item later on." 212 Accordingly, they submit that
the "item veto power of the President mandates that appropriations bills adopt line-item
budgeting" and that "Congress cannot choose a mode of budgeting which effectively
renders the constitutionally-given power of the President useless." 213
On the other hand, respondents maintain that the text of the Constitution envisions a
process which is intended to meet the demands of a modernizing economy and, as such,
lump-sum appropriations are essential to financially address situations which are barely
foreseen when a GAA is enacted. They argue that the decision of the Congress to create
some lump-sum appropriations is constitutionally allowed and textually-grounded. 214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective
allocation limit since the said amount would be further divided among individual legislators
who would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As these intermediate
appropriations are made by legislators only after the GAA is passed and hence, outside of
the law, it necessarily means that the actual items of PDAF appropriation would not have
been written into the General Appropriations Bill and thus effectuated without veto
consideration. This kind of lump-sum/post-enactment legislative identification budgeting
system fosters the creation of a budget within a budget" which subverts the prescribed
procedure of presentment and consequently impairs the President‘s power of item veto. As
petitioners aptly point out, the above-described system forces the President to decide
between (a) accepting the entire ₱24.79 Billion PDAF allocation without knowing the specific
projects of the legislators, which may or may not be consistent with his national agenda and
(b) rejecting the whole PDAF to the detriment of all other legislators with legitimate
projects.215
Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF
Article would remain constitutionally flawed since it would then operate as a prohibited
form of lump-sum appropriation above-characterized. In particular, the lump-sum amount
of ₱24.79 Billion would be treated as a mere funding source allotted for multiple purposes
of spending, i.e., scholarships, medical missions, assistance to indigents, preservation of
historical materials, construction of roads, flood control, etc. This setup connotes that the
appropriation law leaves the actual amounts and purposes of the appropriation for further
determination and, therefore, does not readily indicate a discernible item which may be
subject to the President‘s power of item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information
that would aid in more stringently auditing the utilization of said Funds." 216 Accordingly, she
recommends the adoption of a "line by line budget or amount per proposed program,
activity or project, and per implementing agency." 217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as
all Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such
budgeting system provides for a greater degree of flexibility to account for future
contingencies cannot be an excuse to defeat what the Constitution requires. Clearly, the
first and essential truth of the matter is that unconstitutional means do not justify even
commendable ends.218
c. Accountability.
Petitioners further relate that the system under which various forms of Congressional Pork
Barrel operate defies public accountability as it renders Congress incapable of checking itself
or its Members. In particular, they point out that the Congressional Pork Barrel "gives each
legislator a direct, financial interest in the smooth, speedy passing of the yearly budget"
which turns them "from fiscalizers" into "financially-interested partners." 219 They also claim
that the system has an effect on re- election as "the PDAF excels in self-perpetuation of
elective officials." Finally, they add that the "PDAF impairs the power of impeachment" as
such "funds are indeed quite useful, ‘to well, accelerate the decisions of senators.‘" 220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of
the Constitution which embodies the parameters of the people‘s trust. The notion of a
public trust connotes accountability,221 hence, the various mechanisms in the Constitution
which are designed to exact accountability from public officers.
Among others, an accountability mechanism with which the proper expenditure of public
funds may be checked is the power of congressional oversight. As mentioned in
Abakada,222 congressional oversight may be performed either through: (a) scrutiny based
primarily on Congress‘ power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by
either of its Houses on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant
to the power of Congress to conduct inquiries in aid of legislation. 224
The Court agrees with petitioners that certain features embedded in some forms of
Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on
congressional oversight. The fact that individual legislators are given post-enactment roles in
the implementation of the budget makes it difficult for them to become disinterested
"observers" when scrutinizing, investigating or monitoring the implementation of the
appropriation law. To a certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would, in effect, be checking on
activities in which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article VI of the
1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally appear as
counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and
other administrative bodies. Neither shall he, directly or indirectly, be interested financially
in any contract with, or in any franchise or special privilege granted by the Government, or
any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation, or its subsidiary, during his term of office. He shall not intervene in
any matter before any office of the Government for his pecuniary benefit or where he may
be called upon to act on account of his office. (Emphasis supplied)
Clearly, allowing legislators to intervene in the various phases of project implementation – a
matter before another office of government – renders them susceptible to taking undue
advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority
and/or the individual legislator‘s control of his PDAF per se would allow him to perpetuate
himself in office. Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof
may be linked to this area of interest, the use of his PDAF for re-election purposes is a
matter which must be analyzed based on particular facts and on a case-to-case basis.
Finally, while the Court accounts for the possibility that the close operational proximity
between legislators and the Executive department, through the former‘s post-enactment
participation, may affect the process of impeachment, this matter largely borders on the
domain of politics and does not strictly concern the Pork Barrel System‘s intrinsic
constitutionality. As such, it is an improper subject of judicial assessment.
In sum, insofar as its post-enactment features dilute congressional oversight and violate
Section 14, Article VI of the 1987 Constitution, thus impairing public accountability, the 2013
PDAF Article and other forms of Congressional Pork Barrel of similar nature are deemed as
unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians who are
members of political dynasties to accumulate funds to perpetuate themselves in power, in
contravention of Section 26, Article II of the 1987 Constitution 225 which states that:
Sec. 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not self-
executing due to the qualifying phrase "as may be defined by law." In this respect, said
provision does not, by and of itself, provide a judicially enforceable constitutional right but
merely specifies guideline for legislative or executive action. 226 Therefore, since there
appears to be no standing law which crystallizes the policy on political dynasties for
enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely
speculative since it has not been properly demonstrated how the Pork Barrel System would
be able to propagate political dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections
2 and 3, Article X of the 1987 Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources,
and provide for the qualifications, election, appointment and removal, term, salaries,
powers and functions and duties of local officials, and all other matters relating to the
organization and operation of the local units.
Pursuant thereto, Congress enacted RA 7160, 227 otherwise known as the "Local Government
Code of 1991" (LGC), wherein the policy on local autonomy had been more specifically
explicated as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities
and make them more effective partners in the attainment of national goals. Toward this
end, the State shall provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby local government units
shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the National Government to the local government units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and offices to conduct
periodic consultations with appropriate local government units, nongovernmental and
people‘s organizations, and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions. (Emphases and underscoring
supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of the State
to empower local government units (LGUs) to develop and ultimately, become self-
sustaining and effective contributors to the national economy. As explained by the Court in
Philippine Gamefowl Commission v. Intermediate Appellate Court: 228
This is as good an occasion as any to stress the commitment of the Constitution to the policy
of local autonomy which is intended to provide the needed impetus and encouragement to
the development of our local political subdivisions as "self - reliant communities." In the
words of Jefferson, "Municipal corporations are the small republics from which the great
one derives its strength." The vitalization of local governments will enable their inhabitants
to fully exploit their resources and more important, imbue them with a deepened sense of
involvement in public affairs as members of the body politic. This objective could be blunted
by undue interference by the national government in purely local affairs which are best
resolved by the officials and inhabitants of such political units. The decision we reach today
conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing public funds for local
development.230 The Court agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is
also a recognition that individual members of Congress, far more than the President and
their congressional colleagues, are likely to be knowledgeable about the needs of their
respective constituents and the priority to be given each project." 231 Drawing strength from
this pronouncement, previous legislators justified its existence by stating that "the relatively
small projects implemented under the Congressional Pork Barrel complement and link the
national development goals to the countryside and grassroots as well as to depressed areas
which are overlooked by central agencies which are preoccupied with mega-
projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and
budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel was
originally established for a worthy goal, which is to enable the representatives to identify
projects for communities that the LGU concerned cannot afford. 233
Notwithstanding these declarations, the Court, however, finds an inherent defect in the
system which actually belies the avowed intention of "making equal the unequal." In
particular, the Court observes that the gauge of PDAF and CDF allocation/division is based
solely on the fact of office, without taking into account the specific interests and
peculiarities of the district the legislator represents. In this regard, the allocation/division
limits are clearly not based on genuine parameters of equality, wherein economic or
geographic indicators have been taken into consideration. As a result, a district
representative of a highly-urbanized metropolis gets the same amount of funding as a
district representative of a far-flung rural province which would be relatively
"underdeveloped" compared to the former. To add, what rouses graver scrutiny is that even
Senators and Party-List Representatives – and in some years, even the Vice-President – who
do not represent any locality, receive funding from the Congressional Pork Barrel as well.
These certainly are anathema to the Congressional Pork Barrel‘s original intent which is "to
make equal the unequal." Ultimately, the PDAF and CDF had become personal funds under
the effective control of each legislator and given unto them on the sole account of their
office.
The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are
already legally mandated to "assist the corresponding sanggunian in setting the direction of
economic and social development, and coordinating development efforts within its
territorial jurisdiction."234 Considering that LDCs are instrumentalities whose functions are
essentially geared towards managing local affairs, 235 their programs, policies and resolutions
should not be overridden nor duplicated by individual legislators, who are national officers
that have no law-making authority except only when acting as a body. The undermining
effect on local autonomy caused by the post-enactment authority conferred to the latter
was succinctly put by petitioners in the following wise: 236
With PDAF, a Congressman can simply bypass the local development council and initiate
projects on his own, and even take sole credit for its execution. Indeed, this type of
personality-driven project identification has not only contributed little to the overall
development of the district, but has even contributed to "further weakening infrastructure
planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local matters and
thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended
by PD 1993), which respectively provide for the Malampaya Funds and the Presidential
Social Fund, as invalid appropriations laws since they do not have the "primary and specific"
purpose of authorizing the release of public funds from the National Treasury. Petitioners
submit that Section 8 of PD 910 is not an appropriation law since the "primary and specific‖
purpose of PD 910 is the creation of an Energy Development Board and Section 8 thereof
only created a Special Fund incidental thereto. 237 In similar regard, petitioners argue that
Section 12 of PD 1869 is neither a valid appropriations law since the allocation of the
Presidential Social Fund is merely incidental to the "primary and specific" purpose of PD
1869 which is the amendment of the Franchise and Powers of PAGCOR. 238 In view of the
foregoing, petitioners suppose that such funds are being used without any valid law allowing
for their proper appropriation in violation of Section 29(1), Article VI of the 1987
Constitution which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." 239
The Court disagrees.
"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the
1987 Constitution exists when a provision of law (a) sets apart a determinate or
determinable240 amount of money and (b) allocates the same for a particular public purpose.
These two minimum designations of amount and purpose stem from the very definition of
the word "appropriation," which means "to allot, assign, set apart or apply to a particular
use or purpose," and hence, if written into the law, demonstrate that the legislative intent
to appropriate exists. As the Constitution "does not provide or prescribe any particular form
of words or religious recitals in which an authorization or appropriation by Congress shall be
made, except that it be ‘made by law,‘" an appropriation law may – according to Philconsa –
be "detailed and as broad as Congress wants it to be" for as long as the intent to appropriate
may be gleaned from the same. As held in the case of Guingona, Jr.: 241
There is no provision in our Constitution that provides or prescribes any particular form of
words or religious recitals in which an authorization or appropriation by Congress shall be
made, except that it be "made by law," such as precisely the authorization or appropriation
under the questioned presidential decrees. In other words, in terms of time horizons, an
appropriation may be made impliedly (as by past but subsisting legislations) as well as
expressly for the current fiscal year (as by enactment of laws by the present Congress), just
as said appropriation may be made in general as well as in specific terms. The Congressional
authorization may be embodied in annual laws, such as a general appropriations act or in
special provisions of laws of general or special application which appropriate public funds
for specific public purposes, such as the questioned decrees. An appropriation measure is
sufficient if the legislative intention clearly and certainly appears from the language
employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the present.
(Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave: 242
To constitute an appropriation there must be money placed in a fund applicable to the
designated purpose. The word appropriate means to allot, assign, set apart or apply to a
particular use or purpose. An appropriation in the sense of the constitution means the
setting apart a portion of the public funds for a public purpose. No particular form of words
is necessary for the purpose, if the intention to appropriate is plainly manifested. (Emphases
supplied)
Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation
must be the "primary and specific" purpose of the law in order for a valid appropriation law
to exist. To reiterate, if a legal provision designates a determinate or determinable amount
of money and allocates the same for a particular public purpose, then the legislative intent
to appropriate becomes apparent and, hence, already sufficient to satisfy the requirement
of an "appropriation made by law" under contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all sources including receipts from
service contracts and agreements such as application and processing fees, signature bonus,
discovery bonus, production bonus; all money collected from concessionaires, representing
unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as
the government share representing royalties, rentals, production share on service contracts
and similar payments on the exploration, development and exploitation of energy
resources, shall form part of a Special Fund to be used to finance energy resource
development and exploitation programs and projects of the government and for such other
purposes as may be hereafter directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise
Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross earnings be less than
₱150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the
priority infrastructure development projects and to finance the restoration of damaged or
destroyed facilities due to calamities, as may be directed and authorized by the Office of the
President of the Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded
that (a) Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues,
and receipts of the Energy Development Board from any and all sources" (a determinable
amount) "to be used to finance energy resource development and exploitation programs
and projects of the government and for such other purposes as may be hereafter directed
by the President" (a specified public purpose), and (b) Section 12 of PD 1869, as amended by
PD 1993, which similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of PAGCOR, or
60%, if the aggregate gross earnings be less than ₱150,000,000.00" (also a determinable
amount) "to finance the priority infrastructure development projects and x x x the
restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines" (also a specified public
purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed
as a legal appropriation under the said constitutional provision precisely because, as earlier
stated, it contains post-enactment measures which effectively create a system of
intermediate appropriations. These intermediate appropriations are the actual
appropriations meant for enforcement and since they are made by individual legislators
after the GAA is passed, they occur outside the law. As such, the Court observes that the
real appropriation made under the 2013 PDAF Article is not the ₱24.79 Billion allocated for
the entire PDAF, but rather the post-enactment determinations made by the individual
legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013 PDAF
Article does not constitute an "appropriation made by law" since it, in its truest sense, only
authorizes individual legislators to appropriate in violation of the non-delegability principle
as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue
delegation of legislative power since the phrase "and for such other purposes as may be
hereafter directed by the President" gives the President "unbridled discretion to determine
for what purpose the funds will be used." 243 Respondents, on the other hand, urged the
Court to apply the principle of ejusdem generis to the same section and thus, construe the
phrase "and for such other purposes as may be hereafter directed by the President" to refer
only to other purposes related "to energy resource development and exploitation programs
and projects of the government."244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable amount for a particular public
purpose is sufficient for a legal appropriation to exist, the appropriation law must contain
adequate legislative guidelines if the same law delegates rule-making authority to the
Executive245 either for the purpose of (a) filling up the details of the law for its enforcement,
known as supplementary rule-making, or (b) ascertaining facts to bring the law into actual
operation, referred to as contingent rule-making. 246 There are two (2) fundamental tests to
ensure that the legislative guidelines for delegated rule-making are indeed adequate. The
first test is called the "completeness test." Case law states that a law is complete when it
sets forth therein the policy to be executed, carried out, or implemented by the delegate.
On the other hand, the second test is called the "sufficient standard test." Jurisprudence
holds that a law lays down a sufficient standard when it provides adequate guidelines or
limitations in the law to map out the boundaries of the delegate‘s authority and prevent the
delegation from running riot.247 To be sufficient, the standard must specify the limits of the
delegate‘s authority, announce the legislative policy, and identify the conditions under
which it is to be implemented.248
In view of the foregoing, the Court agrees with petitioners that the phrase "and for such
other purposes as may be hereafter directed by the President" under Section 8 of PD 910
constitutes an undue delegation of legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits of the President‘s authority with
respect to the purpose for which the Malampaya Funds may be used. As it reads, the said
phrase gives the President wide latitude to use the Malampaya Funds for any other purpose
he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the
purview of the law. That the subject phrase may be confined only to "energy resource
development and exploitation programs and projects of the government" under the
principle of ejusdem generis, meaning that the general word or phrase is to be construed to
include – or be restricted to – things akin to, resembling, or of the same kind or class as
those specifically mentioned,249 is belied by three (3) reasons: first, the phrase "energy
resource development and exploitation programs and projects of the government" states a
singular and general class and hence, cannot be treated as a statutory reference of specific
things from which the general phrase "for such other purposes" may be limited; second, the
said phrase also exhausts the class it represents, namely energy development programs of
the government;250 and, third, the Executive department has, in fact, used the Malampaya
Funds for non-energy related purposes under the subject phrase, thereby contradicting
respondents‘ own position that it is limited only to "energy resource development and
exploitation programs and projects of the government." 251 Thus, while Section 8 of PD 910
may have passed the completeness test since the policy of energy development is clearly
deducible from its text, the phrase "and for such other purposes as may be hereafter
directed by the President" under the same provision of law should nonetheless be stricken
down as unconstitutional as it lies independently unfettered by any sufficient standard of
the delegating law. This notwithstanding, it must be underscored that the rest of Section 8,
insofar as it allows for the use of the Malampaya Funds "to finance energy resource
development and exploitation programs and projects of the government," remains legally
effective and subsisting. Truth be told, the declared unconstitutionality of the
aforementioned phrase is but an assurance that the Malampaya Funds would be used – as it
should be used – only in accordance with the avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12
of PD 1869 has already been amended by PD 1993 which thus moots the parties‘
submissions on the same.252 Nevertheless, since the amendatory provision may be readily
examined under the current parameters of discussion, the Court proceeds to resolve its
constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential
Social Fund may be used "to first, finance the priority infrastructure development projects
and second, to finance the restoration of damaged or destroyed facilities due to calamities,
as may be directed and authorized by the Office of the President of the Philippines." The
Court finds that while the second indicated purpose adequately curtails the authority of the
President to spend the Presidential Social Fund only for restoration purposes which arise
from calamities, the first indicated purpose, however, gives him carte blanche authority to
use the same fund for any infrastructure project he may so determine as a "priority". Verily,
the law does not supply a definition of "priority in frastructure development projects" and
hence, leaves the President without any guideline to construe the same. To note, the
delimitation of a project as one of "infrastructure" is too broad of a classification since the
said term could pertain to any kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system, especially public services and
facilities (such as highways, schools, bridges, sewers, and water-systems) needed to support
commerce as well as economic and residential development." 253 In fine, the phrase "to
finance the priority infrastructure development projects" must be stricken down as
unconstitutional since – similar to the above-assailed provision under Section 8 of PD 910 –
it lies independently unfettered by any sufficient standard of the delegating law. As they are
severable, all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains
legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the
Court did so in the context of its pronouncements made in this Decision – petitioners
equally pray that the Executive Secretary and/or the DBM be ordered to release to the CoA
and to the public: (a) "the complete schedule/list of legislators who have availed of their
PDAF and VILP from the years 2003 to 2013, specifying the use of the funds, the project or
activity and the recipient entities or individuals, and all pertinent data thereto" (PDAF Use
Schedule/List);254 and (b) "the use of the Executive‘s lump-sum, discretionary funds,
including the proceeds from the x x x Malampaya Funds and remittances from the PAGCOR x
x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or
individuals, and all pertinent data thereto" 255 (Presidential Pork Use Report). Petitioners‘
prayer is grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution
which read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.
ARTICLE III Sec. 7.
The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.
The Court denies petitioners‘ submission.
Case law instructs that the proper remedy to invoke the right to information is to file a
petition for mandamus. As explained in the case of Legaspi v. Civil Service Commission: 256
While the manner of examining public records may be subject to reasonable regulation by
the government agency in custody thereof, the duty to disclose the information of public
concern, and to afford access to public records cannot be discretionary on the part of said
agencies. Certainly, its performance cannot be made contingent upon the discretion of such
agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by
any whimsical exercise of agency discretion. The constitutional duty, not being discretionary,
its performance may be compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to
be enforced and the concomitant duty of the State are unequivocably set forth in the
Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus in this case
is, whether the information sought by the petitioner is within the ambit of the constitutional
guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr. 257 (Valmonte), it has been clarified that
the right to information does not include the right to compel the preparation of "lists,
abstracts, summaries and the like." In the same case, it was stressed that it is essential that
the "applicant has a well -defined, clear and certain legal right to the thing demanded and
that it is the imperative duty of defendant to perform the act required." Hence, without the
foregoing substantiations, the Court cannot grant a particular request for information. The
pertinent portions of Valmonte are hereunder quoted: 258
Although citizens are afforded the right to information and, pursuant thereto, are entitled to
"access to official records," the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their
desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has
a well-defined, clear and certain legal right to the thing demanded and that it is the
imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific Lemi v. Valencia, G.R. No.
L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27,
1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of mandamus
actions, the Court finds that petitioners have failed to establish a "a well-defined, clear and
certain legal right" to be furnished by the Executive Secretary and/or the DBM of their
requested PDAF Use Schedule/List and Presidential Pork Use Report. Neither did petitioners
assert any law or administrative issuance which would form the bases of the latter‘s duty to
furnish them with the documents requested. While petitioners pray that said information be
equally released to the CoA, it must be pointed out that the CoA has not been impleaded as
a party to these cases nor has it filed any petition before the Court to be allowed access to
or to compel the release of any official document relevant to the conduct of its audit
investigations. While the Court recognizes that the information requested is a matter of
significant public concern, however, if only to ensure that the parameters of disclosure are
properly foisted and so as not to unduly hamper the equally important interests of the
government, it is constrained to deny petitioners‘ prayer on this score, without prejudice to
a proper mandamus case which they, or even the CoA, may choose to pursue through a
separate petition.
It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be
furnished with such schedule/list and report and not in any way deny them, or the general
public, access to official documents which are already existing and of public record. Subject
to reasonable regulation and absent any valid statutory prohibition, access to these
documents should not be proscribed. Thus, in Valmonte, while the Court denied the
application for mandamus towards the preparation of the list requested by petitioners
therein, it nonetheless allowed access to the documents sought for by the latter, subject,
however, to the custodian‘s reasonable regulations,viz.: 259
In fine, petitioners are entitled to access to the documents evidencing loans granted by the
GSIS, subject to reasonable regulations that the latter may promulgate relating to the
manner and hours of examination, to the end that damage to or loss of the records may be
avoided, that undue interference with the duties of the custodian of the records may be
prevented and that the right of other persons entitled to inspect the records may be insured
Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383,
387. The petition, as to the second and third alternative acts sought to be done by
petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members belonging
to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then First Lady Imelda
Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.
Petitioners further seek that the Court "order the inclusion in budgetary deliberations with
the Congress of all presently, off-budget, lump sum, discretionary funds including but not
limited to, proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the
PCSO or the Executive‘s Social Funds."260
Suffice it to state that the above-stated relief sought by petitioners covers a matter which is
generally left to the prerogative of the political branches of government. Hence, lest the
Court itself overreach, it must equally deny their prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.
The final issue to be resolved stems from the interpretation accorded by the DBM to the
concept of released funds. In response to the Court‘s September 10, 2013 TRO that enjoined
the release of the remaining PDAF allocated for the year 2013, the DBM issued Circular
Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8) which pertinently reads
as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
Release Order (SARO) has been issued by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may continually be implemented
and disbursements thereto effected by the agencies concerned.
Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that
said SARO had been obligated by the implementing agency concerned prior to the issuance
of the Court‘s September 10, 2013 TRO.
Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO
does not yet involve the release of funds under the PDAF, as release is only triggered by the
issuance of a Notice of Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if
covered by an obligated SARO, should remain enjoined.
For their part, respondents espouse that the subject TRO only covers "unreleased and
unobligated allotments." They explain that once a SARO has been issued and obligated by
the implementing agency concerned, the PDAF funds covered by the same are already
"beyond the reach of the TRO because they cannot be considered as ‘remaining PDAF.‘"
They conclude that this is a reasonable interpretation of the TRO by the DBM. 262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not the Court‘s September
10, 2013 TRO should be lifted is a matter rendered moot by the present Decision. The
unconstitutionality of the 2013 PDAF Article as declared herein has the consequential effect
of converting the temporary injunction into a permanent one. Hence, from the
promulgation of this Decision, the release of the remaining PDAF funds for 2013, among
others, is now permanently enjoined.
The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be
resolved as it has a practical impact on the execution of the current Decision. In particular,
the Court must resolve the issue of whether or not PDAF funds covered by obligated SAROs,
at the time this Decision is promulgated, may still be disbursed following the DBM‘s
interpretation in DBM Circular 2013-8.
On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that
funds covered by an obligated SARO are yet to be "released" under legal contemplation. A
SARO, as defined by the DBM itself in its website, is "aspecific authority issued to identified
agencies to incur obligations not exceeding a given amount during a specified period for the
purpose indicated. It shall cover expenditures the release of which is subject to compliance
with specific laws or regulations, or is subject to separate approval or clearance by
competent authority."263
Based on this definition, it may be gleaned that a SARO only evinces the existence of an
obligation and not the directive to pay. Practically speaking, the SARO does not have the
direct and immediate effect of placing public funds beyond the control of the disbursing
authority. In fact, a SARO may even be withdrawn under certain circumstances which will
prevent the actual release of funds. On the other hand, the actual release of funds is
brought about by the issuance of the NCA, 264 which is subsequent to the issuance of a SARO.
As may be determined from the statements of the DBM representative during the Oral
Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to
obligate or to enter into commitments. The NCA, Your Honor, is already the go signal to the
treasury for us to be able to pay or to liquidate the amounts obligated in the SARO; so it
comes after. x x x The NCA, Your Honor, is the go signal for the MDS for the authorized
government-disbursing banks to, therefore, pay the payees depending on the projects or
projects covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the
SAROs issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as funds which
have been "released." In this respect, therefore, the disbursement of 2013 PDAF funds
which are only covered by obligated SAROs, and without any corresponding NCAs issued,
must, at the time of this Decision’s promulgation, be enjoined and consequently reverted to
the unappropriated surplus of the general fund. Verily, in view of the declared
unconstitutionality of the 2013 PDAF Article, the funds appropriated pursuant thereto
cannot be disbursed even though already obligated, else the Court sanctions the dealing of
funds coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the Malampaya Funds which have
been obligated but not released – meaning, those merely covered by a SARO – under the
phrase "and for such other purposes as may be hereafter directed by the President"
pursuant to Section 8 of PD 910; and (b) funds sourced from the Presidential Social Fund
under the phrase "to finance the priority infrastructure development projects" pursuant to
Section 12 of PD 1869, as amended by PD 1993, which were altogether declared by the
Court as unconstitutional. However, these funds should not be reverted to the general fund
as afore-stated but instead, respectively remain under the Malampaya Funds and the
Presidential Social Fund to be utilized for their corresponding special purposes not
otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s pronouncement anent the
unconstitutionality of (a) the 2013 PDAF Article and its Special Provisions, (b) all other
Congressional Pork Barrel provisions similar thereto, and (c) the phrases (1) "and for such
other purposes as may be hereafter directed by the President" under Section 8 of PD 910,
and (2) "to finance the priority infrastructure development projects" under Section 12 of PD
1869, as amended by PD 1993, must only be treated as prospective in effect in view of the
operative fact doctrine.
To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal
Revenue v. San Roque Power Corporation,266 the doctrine merely "reflects awareness that
precisely because the judiciary is the governmental organ which has the final say on
whether or not a legislative or executive measure is valid, a period of time may have elapsed
before it can exercise the power of judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and justice then, if there be no
recognition of what had transpired prior to such adjudication." 267 "In the language of an
American Supreme Court decision: ‘The actual existence of a statute, prior to such a
determination of unconstitutionality, is an operative fact and may have consequences which
cannot justly be ignored.‘"268
For these reasons, this Decision should be heretofore applied prospectively.
Conclusion
The Court renders this Decision to rectify an error which has persisted in the chronicles of
our history. In the final analysis, the Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules within which it operates. To
recount, insofar as it has allowed legislators to wield, in varying gradations, non-oversight,
post-enactment authority in vital areas of budget execution, the system has violated the
principle of separation of powers; insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds from which they are able to fund
specific projects which they themselves determine, it has similarly violated the principle of
non-delegability of legislative power ; insofar as it has created a system of budgeting
wherein items are not textualized into the appropriations bill, it has flouted the prescribed
procedure of presentment and, in the process, denied the President the power to veto
items ; insofar as it has diluted the effectiveness of congressional oversight by giving
legislators a stake in the affairs of budget execution, an aspect of governance which they
may be called to monitor and scrutinize, the system has equally impaired public
accountability ; insofar as it has authorized legislators, who are national officers, to
intervene in affairs of purely local nature, despite the existence of capable local institutions,
it has likewise subverted genuine local autonomy ; and again, insofar as it has conferred to
the President the power to appropriate funds intended by law for energy-related purposes
only to other purposes he may deem fit as well as other public funds under the broad
classification of "priority infrastructure development projects," it has once more
transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional
methods and mechanisms the Court has herein pointed out should never again be adopted
in any system of governance, by any name or form, by any semblance or similarity, by any
influence or effect. Disconcerting as it is to think that a system so constitutionally unsound
has monumentally endured, the Court urges the people and its co-stewards in government
to look forward with the optimism of change and the awareness of the past. At a time of
great civic unrest and vociferous public debate, the Court fervently hopes that its Decision
today, while it may not purge all the wrongs of society nor bring back what has been lost,
guides this nation to the path forged by the Constitution so that no one may heretofore
detract from its cause nor stray from its course. After all, this is the Court‘s bounden duty
and no other‘s.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire
2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel
Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions,
which authorize/d legislators – whether individually or collectively organized into
committees – to intervene, assume or participate in any of the various post-enactment
stages of the budget execution, such as but not limited to the areas of project identification,
modification and revision of project identification, fund release and/or fund realignment,
unrelated to the power of congressional oversight; (c) all legal provisions of past and present
Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various
Congressional Insertions, which confer/red personal, lump-sum allocations to legislators
from which they are able to fund specific projects which they themselves determine; (d) all
informal practices of similar import and effect, which the Court similarly deems to be acts of
grave abuse of discretion amounting to lack or excess of jurisdiction; and (e) the phrases (1)
"and for such other purposes as may be hereafter directed by the President" under Section
8 of Presidential Decree No. 910 and (2) "to finance the priority infrastructure development
projects" under Section 12 of Presidential Decree No. 1869, as amended by Presidential
Decree No. 1993, for both failing the sufficient standard test in violation of the principle of
non-delegability of legislative power.
Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared
to be PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated
for the year 2013, as well as for all previous years, and the funds sourced from (1) the
Malampaya Funds under the phrase "and for such other purposes as may be hereafter
directed by the President" pursuant to Section 8 of Presidential Decree No. 910, and (2) the
Presidential Social Fund under the phrase "to finance the priority infrastructure
development projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended
by Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not
covered by Notice of Cash Allocations (NCAs) but only by Special Allotment Release Orders
(SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF funds
covered by this permanent injunction shall not be disbursed/released but instead reverted
to the unappropriated surplus of the general fund, while the funds under the Malampaya
Funds and the Presidential Social Fund shall remain therein to be utilized for their respective
special purposes not otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation, the Court
hereby DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the
Department of Budget and Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or detailed reports related to the availments
and utilization of the funds subject of these cases. Petitioners‘ access to official documents
already available and of public record which are related to these funds must, however, not
be prohibited but merely subjected to the custodian‘s reasonable regulations or any valid
statutory prohibition on the same. This denial is without prejudice to a proper mandamus
case which they or the Commission on Audit may choose to pursue through a separate
petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these
cases in the budgetary deliberations of Congress as the same is a matter left to the
prerogative of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the
bounds of reasonable dispatch, investigate and accordingly prosecute all government
officials and/or private individuals for possible criminal offenses related to the irregular,
improper and/or unlawful disbursement/utilization of all funds under the Pork Barrel
System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.