Intl vs. Municipal Cases

G.R. No. 139465. January 18, 2000.
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C.

LANTION, Presiding Judge, Regional Trial Court of Manila,
Branch 25, and MARK B. JIMENEZ, respondents.
Constitutional Law; Extradition; Due Process; The only duty of
the Secretary of Justice is to file the extradition petition after the
request and all the supporting papers are forwarded to him by the
Secretary of Foreign Affairs.A strict observance of the
Extradition Law indicates that the only duty of the Secretary of
Justice is to file the extradition petition after the request and all
the supporting papers are forwarded to him by the Secretary of
Foreign Affairs. It is the latter official who is authorized to
evaluate the extradition papers, to assure their sufficiency, and
under Paragraph [3], Article 3 of the Treaty, to determine whether
or not the request is politically motivated, or that the offense is a
military offense which is not punishable under non-military penal
legislation. Ipso facto, as expressly provided in Paragraph [1],
Section 5 of the Extradition Law,
________________
*
EN BANC.
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Secretary of Justice vs. Lantion
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61
the Secretary of Justice has the ministerial duty of filing the

extradition papers.
Same; Same; Same; The
evaluation
process
may
be
characterized as an investigative or inquisitorial process in contrast
to a proceeding conducted in the exercise of an administrative
bodys quasijudicial power.The evaluation process, just like the
extradition proceedings proper, belongs to a class by itself. It is sui
generis. It is not a criminal investigation, but it is also erroneous to
say that it is purely an exercise of ministerial functions. At such
stage, the executive authority has the power: (a) to make a
technical assessment of the completeness and sufficiency of the
extradition papers; (b) to outrightly deny the request if on its face
and on the face of the supporting documents the crimes indicated
are not extraditable; and (c) to make a determination whether or
not the request is politically motivated, or that the offense is a
military one which is not punishable under non-military penal
legislation (tsn, August 31, 1999, pp. 28-29; Article 2 and
Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said
process may be characterized as an investigative or inquisitorial
process in contrast to a proceeding conducted in the exercise of an
administrative bodys quasi-judicial power.
Same; Same; Same; What a quasi-judicial proceeding involve.
In administrative law, a quasi-judicial proceeding involves: (a)
taking and evaluation of evidence; (b) determining facts based
upon the evidence presented; and (c) rendering an order or decision
supported by the facts proved (De Leon, Administrative Law: Text
1
and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304
U.S. 1). Inquisitorial power, which is also known as examining or
investigatory power, is one of the determinative powers of an
administrative body which better enables it to exercise its quasijudicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26).
This power allows the administrative body to inspect the records
and premises, and investigate the activities, of persons or entities
coming under its jurisdiction (Ibid., p. 27), or to require disclosure
of information by means of accounts, records, reports, testimony of
witnesses, production of documents, or otherwise (De Leon, op. cit.,
p. 64).
Same; Same; Same; Same; An investigatory body does not
exercise judicial functions and its power is limited to investigating
the facts and making findings in respect thereto; Its only power is to
determine whether the papers comply with the requirements of the
law and the treaty and, therefore, sufficient to be the basis of an
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SUPREME COURT REPORTS

ANNOTATED
extradition petition.In Ruperto v. Torres (100 Phil. 1098

[1957], unreported), the Court had occasion to rule on the
functions of an investigatory body with the sole power of
investigation. It does not exercise judicial functions and its power
is limited to investigating the facts and making findings in respect
thereto. The Court laid down the test of determining whether an
administrative body is exercising judicial functions or merely

investigatory functions: Adjudication signifies the exercise of power
and authority to adjudicate upon the rights and obligations of the
parties before it. Hence, if the only purpose for investigation is to
evaluate evidence submitted before it based on the facts and
circumstances presented to it, and if the agency is not authorized
to make a final pronouncement affecting the parties, then there is
an absence of judicial discretion and judgment. The above
description in Ruperto applies to an administrative body
authorized to evaluate extradition documents. The body has no
power to adjudicate in regard to the rights and obligations of both
the Requesting State and the prospective extraditee. Its only power
is to determine whether the papers comply with the requirements
of the law and the treaty and, therefore, sufficient to be the basis of
an extradition petition. Such finding is thus merely initial and not
final. The body has no power to determine whether or not the
extradition should be effected. That is the role of the court. The
bodys power is limited to an initial finding of whether or not the
extradition petition can be filed in court.
Same; Same; Same; Same; The evaluation process is akin to
an administrative agency conducting an investigative proceeding,
the consequences of which are essentially criminal; In essence the
evaluation process partakes of the nature of a criminal
investigation.Logically, although the Extradition Law is silent on
this respect, the provisions only mean that once a request is
forwarded to the Requested State, the prospective extraditee may
be continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will
only be discharged if no request is submitted. Practically, the
purpose of this detention is to prevent his possible flight from the
Requested State. Second, the temporary arrest of the prospective
2
extraditee during the pendency of the extradition petition in court

(Section 6, Presidential Decree No. 1069). Clearly, there is an
impending threat to a prospective extraditees liberty as early as
during the evaluation stage. It is not only an imagined threat to
his liberty, but a very imminent one. Because of these possible
consequences, we conclude that the evaluation process is akin to an
administrative agency conducting
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63

an investigative proceeding, the consequences of which are
essentially criminal since such technical assessment sets off or
commences the procedure for, and ultimately, the deprivation of
liberty of a prospective extraditee. As described by petitioner
himself, this is a tool for criminal law enforcement (p. 78, Rollo).
In essence, therefore, the evaluation process partakes of the nature
of a criminal investigation.
Same; Same; Same; Same; Test to determine whether a
proceeding is civil or criminal.There is also the earlier case
of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court,
citing American jurisprudence, laid down the test to determine
whether a proceeding is civil or criminal: If the proceeding is under
a statute such that if an indictment is presented the forfeiture can
be included in the criminal case, such proceeding is criminal in
nature, although it may be civil in form; and where it must be
gathered from the statute that the action is meant to be criminal

in its nature, it cannot be considered as civil. If, however, the
proceeding does not involve the conviction of the wrongdoer for the
offense charged, the proceeding is civil in nature.
Same; Same; Same; Due process is comprised of substantive
and procedural due process; The basic rights of notice and hearing
pervade not only in criminal and civil proceedings, but in
administrative proceedings as well.Due process is comprised of
two componentssubstantive due process which requires the
intrinsic validity of the law in interfering with the rights of the
person to his life, liberty, or property, and procedural due process
which consists of the two basic rights of notice and hearing, as well
as the guarantee of being heard by an impartial and competent
tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to
the mandate of the due process clause, the basic rights of notice
and hearing pervade not only in criminal and civil proceedings, but
in administrative proceedings as well. Non-observance of these
rights will invalidate the proceedings. Individuals are entitled to
be notified of any pending case affecting their interests, and upon
notice, they may claim the right to appear therein and present
their side and to refute the position of the opposing parties.
Same; Same; Same; Same; The
notice
and
hearing
requirements of administrative due process cannot be dispensed
with and shelved aside.Worthy of inquiry is the issue of whether
or not there is tentativeness of administrative action. Is private
respondent
164

3
64
ANNOTATED
precluded from enjoying the right to notice and hearing at a

later time without prejudice to him? Here lies the peculiarity and
deviant characteristic of the evaluation procedure. On one hand,
there is yet no extraditee, but ironically on the other, it results in
an administrative determination which, if adverse to the person
involved, may cause his immediate incarceration. The grant of the
request shall lead to the filing of the extradition petition in court.
The accused (as Section 2[c] of Presidential Decree No. 1069 calls
him), faces the threat of arrest, not only after the extradition
petition is filed in court, but even during the evaluation proceeding
itself by virtue of the provisional arrest allowed under the treaty
and the implementing law. The prejudice to the accused is thus
blatant and manifest. Plainly, the notice and hearing requirements
of administrative due process cannot be dispensed with and
shelved aside.
VITUG, J., Separate Opinion:
Constitutional
Law; Extradition; Due
Process; The
constitutional right to due process secures to everyone an
opportunity to be heard.The constitutional right to due process
secures to everyone an opportunity to be heard, presupposing
foreknowledge of what he may be up against, and to submit any
evidence that he may wish to proffer in an effort to clear himself.
This right is two-prongedsubstantive and procedural due process
founded, in the first instance, on Constitutional or statutory
provisions, and in the second instance, on accepted rules of

procedure. Substantive due process looks into the extrinsic and
intrinsic validity of the law that figures to interfere with the right
of a person to his life, liberty and property. Procedural due process
the more litigated of the twofocuses on the rules that are
established in order to ensure meaningful adjudication in the
enforcement and implementation of the law.
Same; Same; Same; Whenever there is an imminent threat to
the life, liberty or property of any person in any proceeding
conducted by or under the auspices of the State, his right to due
process of law, when demanded, must not be ignored.Like public
concern, the term due process does not admit of any restrictive
definition. x x x Hitherto, it is dynamic and resilient, adaptable to
every situation calling for its application that makes it appropriate
to accept an enlarged concept of the term as and when there is a
possibility that the right of an individual to life, liberty and
property might be diffused. Verily, whenever there is animminent
threat to the life, liberty
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65

or property of any person in any proceeding conducted by or
under the auspices of the State, his right to due process of law,
when demanded, must not be ignored.
4
KAPUNAN, J., Separate Concurring Opinion:

Constitutional Law; Extradition; Due Process; The evaluation
process conducted by the Department of Justice is not exactly a
preliminary investigation of criminal cases, it is akin to a
preliminary investigation because it involves the basic
constitutional rights of the person sought to be extradited.While
the evaluation process conducted by the Department of Justice is
not exactly a preliminary investigation of criminal cases, it is akin
to a preliminary investigation because it involves the basic
constitutional rights of the person sought to be extradited. A
person ordered extradited is arrested, forcibly taken from his
house, separated from his family and delivered to a foreign state.
His rights of abode, to privacy, liberty and pursuit of happiness are
taken away from hima fate as harsh and cruel as a conviction of
a criminal offense. For this reason, he is entitled to have access to
the evidence against him and the right to controvert them.
Same; Same; Same; Any document used in a proceeding that
would jeopardize a persons constitutional rights is matter of public
concern.With respect to petitioners claim that private
respondent has no right to demand access to the documents
relating to the request for extradition, suffice it to say, that any
document used in a proceeding that would jeopardize a persons
constitutional rights is matter of public concern. As Martin Luther
King said, injustice anywhere is a threat to justice everywhere, so
any violation of ones rights guaranteed by the Bill of Rights is
everybodys concern because they, one way or another, directly or
indirectly, affect the rights of life and liberty of all the citizens as a
whole.
Same; Same; Same; Where the liberty of a person is at risk,
and extradition strikes at the very core of liberty, invocation of due
process rights can never be too early.But why must he wait until
the petition for extradition is filed? As succinctly expressed, if the
right to notice and hearing is to serve its full purpose, then, it is
clear that it must be granted at a time when the deprivation can
still be prevented. Like the filing of an information in a criminal
case, the mere filing of a petition for extradition causes immediate
impairment of
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1
66

ANNOTATED
the liberty of the person sought to be extradited and a

substantial curtailment of other rights. His arrest may be
immediately ordered by the regional trial court. He would be
compelled to face an open and public trial. He will be constrained
to seek the assistance of counsel and incur other expenses of
litigation. The public eye would be directed at him with all the
concomitant intrusions to his right to privacy. Where the liberty of
a person is at risk, and extradition strikes at the very core of
liberty, invocation of due process rights can never be too early.
QUISUMBING, J., Concurring Opinion:
Constitutional
Law; Extradition; Due
Process; The
constitutionally mandated duties of our government to the
individual deserve preferential consideration when they collide
with its treaty obligations to the government of another state.The
5
human rights of person, whether citizen or alien, and the rights of

the accused guaranteed in our Constitution should take precedence
over treaty rights claimed by a contracting state. Stated otherwise,
the constitutionally mandated duties of our government to the
individual deserve preferential consideration when they collide
with its treaty obligations to the government of another state. This
is so although we recognize treaties as a source of binding
obligations under generally accepted principles of international
law incorporated in our Constitution as part of the law of the land.
PUNO, J., Dissenting Opinion:
Constitutional Law; Extradition; Due Process; Definition of
Ex-tradition; It does not apply to persons merely suspected of
having committed an offense but against whom no charge has been
laid or to a person whose presence is desired as a witness or for
obtaining or enforcing a civil judgment.Extradition is a welldefined concept and is more a problem in international law. It is
the process by which persons charged with or convicted of crime
against the law of a State and found in a foreign State are returned
by the latter to the former for trial or punishment. It applies to
those who are merely charged with an offense but have not been
brought to trial; to those who have been tried and convicted and
have subsequently escaped from custody; and those who have been
convicted in absentia. It does not applyto persons merely suspected
of having committed an offense but against whom no charge has
been laid or to a person
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67
whose presence is desired as a witness or for obtaining or
enforcing a civil judgment.
Same; Same; Same; Since a fugitive is a mere object and not a
subject of international law, he is bereft of rights.Given the
harshest eye is the moss-covered doctrine thatinternational law
deals only with States and that individuals are not its subject. For
its undesirable corollary is the sub-doctrine that an individuals
right in international law is a near cipher. Translated in
extradition law, the view that once commanded a consensus is that
since a fugitive is a mere object and not a subject of international
law, he is bereft of rights. An extraditee, so it was held, is a mere
object transported from one state to the other as an exercise of the
sovereign will of the two states involved.
Same; Same; Same; Court should consider whether the
constitutional rights invoked by the private respondent have truly
been violated and even assuming so, whether he will be denied
fundamental fairness; Private respondent has not proved
entitlement to the right he is claiming.The case at bar, I
respectfully
submit, does
not
involve
an
irreconcilable
conflict between the RP-US Extradition Treaty and our
Constitution where we have to choose one over the other. Rather, it
calls for a harmonization between said treaty and our Constitution.
To achieve this desirable objective, the Court should consider
whether the constitutional rights invoked by the private respondent
6
have truly been violated and even assuming so, whether he will be
denied fundamental fairness. It is only when their violation will
destroy the respondents right to fundamental fairness that his
constitutional
claims
should
be
given
primacy. Given
this balancing approach, it is my humble submission that
considering all the facts and facets of the case, the private
respondent has not proved entitlement to the right he is claiming.
The majority holds that the Constitution, the RP-US extradition
treaty and P.D. No. 1069 do not prohibit respondents claim, hence,
it should be allowed. This is too simplistic an approach. Rights do
not necessarily arise from a vacuum. Silence of the law can even
mean an implied denial of a right. Also, constitutional litigations
do not always involve a clear cut choice between right and wrong.
Sometimes, they involve a difficult choice between right against
right. In these situations, there is need to balance the contending
rights and primacy is given to the right that will serve the interest
of the nation at that particular time. In such instances, the less
compelling right is subjected to soft restraint
168
1
68

ANNOTATED
but without smothering its essence. Proceeding from this

premise of relativism of rights, I venture the view that even
assuming arguendo respondents weak claim, still, the degree of
denial of private respondents rights to due process and to
information is too slight to warrant the interposition of judicial

power.
Same; Same; Same; In an extradition proceeding, there is no
accused and the guilt or innocence of the extraditee will not be
passed upon by our executive officials nor by the extradition judge.
As admitted in the ponencia itself, an extradition proceeding
is sui generis. It is, thus, futile to determine what it is. What is
certain is that it is not a criminal proceeding where there is an
accused who can claim the entire array of rights guaranteed by the
Bill of Rights. Let it be stressed that in an extradition proceeding,
there is no accused and the guilt or innocence of the extraditee will
not be passed upon by our executive officials nor by the extradition
judge. Hence, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked
by an extraditee. Indeed, an extradition proceeding is summary in
nature which is untrue of criminal proceedings. Even the rules of
evidence are different in an extradition proceeding.
Same; Same; Same; A request for respondents arrest does not
mean he will be the victim of an arbitrary arrest.Respondent
Jimenez stands in danger of provisional arrest, hence, the need for
him to be immediately furnished copies of documents
accompanying the request for his extradition. Respondents fear of
provisional arrest is not real. It is a self-imagined fear for the
realities on the ground show that the United States authorities
have not manifested any desire to request for his arrest. On the
contrary, they filed the extradition request through the regular
channel and, even with the pendency of the case at bar, they have
not moved for respondents arrest on the ground of probable delay
in the proceedings. To be sure, the issue of whether respondent
Jimenez will be provisionally arrested is now moot. Under Section 1
of Article 9 of the RP-US Extradition Treaty, in relation to Section
7
20(a) of PD No. 1069, the general principle is enunciated that a

request for provisional arrest must be made pending receipt of the
request for extradition. By filing the request for extradition, the US
authorities have implicitly decided not to move for respondents
provisional arrest. But more important, arequest for respondents
arrest does not mean he will be the victim of an arbitrary arrest. He
will be given due process before he can be arrested.
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VOL. 322, JANUARY 18, 2000
169

PETITION for review of a decision of the Regional Trial
Court of Manila, Br. 25.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Estelito P. Mendoza for private respondent.
MELO, J.:
The individual citizen is but a speck of particle or
molecule vis--vis the vast and overwhelming powers of
government. His only guarantee against oppression and
tyranny are his fundamental liberties under the Bill of
Rights which shield him in times of need. The Court is now
called to decide whether to uphold a citizens basic due

process rights, or the governments ironclad duties under a
treaty. The bugle sounds and this Court must once again act
as the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following
factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos
issued Presidential Decree No. 1069 Prescribing the
Procedure for the Extradition of Persons Who Have
Committed Crimes in a Foreign Country. The Decree is
founded on: the doctrine of incorporation under the
Constitution; the mutual concern for the suppression of crime
both in the state where it was committed and the state where
the criminal may have escaped; the extradition treaty with
the Republic of Indonesia and the intention of the Philippines
to enter into similar treaties with other interested countries;
and the need for rules to guide the executive department and
the courts in the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin
M. Drilon, representing the Government of the Republic of
the Philippines, signed in Manila the Extradition Treaty
Between the Government of the Republic of the Philippines
and the Government of the United States of America
170
170
SUPREME COURT REPORTS ANNOTATED

8
2. B)26 USC 7201 (Attempt to evade or defeat tax; four [4]

counts; Maximum Penalty5 years on each count);

(hereinafter referred to as the RP-US Extradition Treaty).
The Senate, by way of Resolution No. 11, expressed its
concurrence in the ratification of said treaty. It also
expressed its concurrence in the Diplomatic Notes correcting
Paragraph (5)(a), Article 7 thereof (on the admissibility of the
documents accompanying an extradition request upon
certification by the principal diplomatic or consular officer of
the requested state resident in the Requesting State).
On June 18, 1999, the Department of Justice received
from the Department of Foreign Affairs U.S. Note Verbale No.
0522 containing a request for the extradition of private
respondent Mark Jimenez to the United States. Attached to
the Note Verbale were the Grand Jury Indictment, the
warrant of arrest issued by the U.S. District Court, Southern
District of Florida, and other supporting documents for said
extradition. Based on the papers submitted, private
respondent appears to be charged in the United States with
violation of the following provisions of the United States Code
(USC):
1. A)18 USC 371 (Conspiracy to commit offense or to defraud
the United States; two [2] counts; Maximum Penalty5
years on each count);
3. C)18 USC 1343 (Fraud by wire, radio, or television; two [2]

counts; Maximum Penalty5 years on each count);
4. D)18 USC 1001 (False statement or entries; six [6] counts;
Maximum Penalty5 years on each count);
5. E)2 USC 441f (Election contributions in name of another,
thirty-three [33] counts; Maximum Penaltyless than one
year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No.

249 designating and authorizing a panel of attorneys to take
charge of and to handle the case pursuant to Section 5(1) of
Presidential Decree No. 1069. Accordingly, the panel began
with the technical evaluation and assessment of the
extradition request and the documents in support thereof.
The panel
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171
found that the official English translation of some

documents in Spanish were not attached to the request and
that there are some other matters that needed to be
addressed (p. 15, Rollo).
Pending evaluation of the afotestated extradition
documents, private respondent, through counsel, wrote a
letter dated July 1, 1999 addressed to petitioner requesting
copies of the official extradition request from the U.S.
Government, as well as all documents and papers submitted
therewith; and that he be given ample time to comment on
the request after he shall have received copies of the
requested papers. Private respondent also requested that the
proceedings on the matter be held in abeyance in the
meantime.
Later, private respondent requested that preliminarily, he
be given at least a copy of, or access to, the request of the
United States Government, and after receiving a copy of the
Diplomatic Note, a period of time to amplify on his request.
In response to private respondents July 1, 1999 letter,
petitioner, in a reply-letter dated July 13, 1999 (but received
by private respondent only on August 4, 1999), denied the
foregoing requests for the following reasons:
1. We find it premature to furnish you with copies of the
extradition request and supporting documents from the United
States Government, pending evaluation by this Department of the
sufficiency of the extradition documents submitted in accordance
with the provisions of the extradition treaty and our extradition
law. Article 7 of the Extradition Treaty between the Philippines

and the United States enumerates the documentary requirements
and establishes the procedures under which the documents
submitted shall be received and admitted as evidence. Evidentiary
requirements under our domestic law are also set forth in Section 4
of P.D. No. 1069.
Evaluation by this Department of the aforementioned
documents is not a preliminary investigation nor akin to
preliminary investigation of criminal cases. We merely determine
whether the procedures and requirements under the relevant law
and treaty have been complied with by the Requesting
Government. The consti172
172

tutionally guaranteed rights of the accused in all criminal

prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the
person sought to be extradited will be furnished by the court with
copies of the petition, request and extradition documents and this
Department will not pose any objection to a request for ample time
to evaluate said documents.
2. The formal request for extradition of the United States
contains grand jury information and documents obtained through
10
grand jury process covered by strict secrecy rules under United

States law. The United States had to secure orders from the
concerned District Courts authorizing the United States to disclose
certain grand jury information to Philippine government and law
enforcement personnel for the purpose of extradition of Mr.
Jimenez. Any further disclosure of the said information is not
authorized by the United States District Courts. In this particular
extradition request the United States Government requested the
Philippine Government to prevent unauthorized disclosure of the
subject information. This Departments denial of your request is
consistent with Article 7 of the RP-US Extradition Treaty which
provides that the Philippine Government must represent the
interests of the United States in any proceedings arising out of a
request for extradition. The Department of Justice under P.D. No.
1069 is the counsel of the foreign governments in all extradition
requests.
3. This Department is not in a position to hold in abeyance
proceedings in connection with an extradition request. Article 26 of
the Vienna Convention on the Law of Treaties, to which we are a
party provides that [E]very treaty in force is binding upon the
parties to it and must be performed by them in good faith.
Extradition is a tool of criminal law enforcement and to be
effective, requests for extradition or surrender of accused or
convicted persons must be processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999,

private respondent filed with the Regional Trial Court of the
National Capital Judicial Region a petition against the
Secretary of Justice, the Secretary of Foreign Affairs, and the
Director of the National Bureau of Investigation, for

mandamus (to compel herein petitioner to furnish private
respondent the
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VOL. 322, JANUARY 18, 2000
173

extradition documents, to give him access thereto, and to
afford him an opportunity to comment on, or oppose, the
extradition request, and thereafter to evaluate the request
impartially, fairly and objectively); certiorari (to set aside
herein petitioners letter dated July 13, 1999); and
prohibition (to restrain petitioner from considerng the
extradition request and from filing an extradition petition in
court; and to enjoin the Secretary of Foreign Affairs and the
Director of the NBI from performing any act directed to the
extradition of private respondent to the United States), with
an application for the issuance of a temporary restraining
order and a writ of preliminary injunction (pp. 104-105,
Rollo).
The aforementioned petition was docketed as Civil Case
No. 99-94684 and thereafter raffled to Branch 25 of said
regional trial court stationed in Manila which is presided
over by the Honorable Ralph C. Lantion.
11
After due notice to the parties, the case was heard on

August 9, 1999. Petitioner, who appeared in his own behalf,
moved that he be given ample time to file a memorandum,
but the same was denied.
On August 10, 1999, respondent judge issued an order
dated the previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely:
the Secretary of Justice, the Secretary of Foreign Affairs and the
Director of the National Bureau of Investigation, their agents
and/or representatives to maintain the status quo by refraining
from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial Court; and from
performing any act directed to the extradition of the petitioner to
the United States, for a period of twenty (20) days from service on
respondents of this Order, pursuant to Section 5, Rule 58 of the
1997 Rules of Court.
The hearing as to whether or not this Court shall issue the
preliminary injunction, as agreed upon by the counsels for the
parties herein, is set on August 17, 1999 at 9:00 oclock in the
morning. The respondents are, likewise, ordered to file their
written comment
174
174

and/or opposition to the issuance of a Preliminary Injunction on or
before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings,

arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM
COMMITTING THE ACTS COMPLAINED OF, I.E.,TO DESIST
FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE
OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND
FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY
TO FILE A COMMENT ON, OR OPPOSITION TO, THE
REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS
IN THE PETITION FOR MANDAMUS, CERTIORARI AND
PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO
CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE
MANDAMUS ISSUES;
12
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM
PERFORMING LEGAL DUTIES UNDER THE EXTRADITION
TREATY AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND
PROHIBITION IS, ON ITS FACE, FORMALLY AND
SUBSTANTIALLY DEFICIENT; AND
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief

Justice, Supreme Court of the Philippines, this 17th day of August
1999.
(pp. 120-121, Rollo.)
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSETHAT
NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT
SUFFER ANY IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
175
VOL. 322, JANUARY 18, 2000
NOW, THEREFORE, effective immediately and continuing until

further orders from this Court, You, Respondent Judge Ralph C.
Lantion, your agents, representatives or any person or persons
acting in your place or stead are hereby ORDERED to CEASE and
DESIST from enforcing the assailed order dated August 9, 1999
issued by public respondent in Civil Case No. 99-94684.
175

On August 17, 1999, the Court required private respondent to
file his comment. Also issued, as prayed for, was a temporary
restraining order (TRO) providing:
The case was heard on oral argument on August 31, 1999,

after which the parties, as directed, filed their respective
memoranda.
From the pleadings of the opposing parties, both
procedural and substantive issues are patent. However, a
review of these issues as well as the extensive arguments of
both parties, compel us to delineate the focal point raised by
the pleadings: During the evaluation stage of the extradition
proceedings, is private respondent entitled to the two basic
due process rights of notice and hearing? An affirmative
answer would necessarily render the proceedings at the trial
court, moot and academic (the issues of which are
substantially the same as those before us now), while a
negative resolution would call for the immediate lifting of the
TRO issued by this Court dated August 24, 1999, thus
allowing petitioner to fasttrack the process leading to the
filing of the extradition petition with the proper regional trial
13
court. Corollarily, in the event that private respondent is

adjudged entitled to basic due process rights at the
evaluation stage of the extradition proceedings, would this
entitlement constitute a breach of the legal commitments and
obligations of the Philippine Government under the RP-US
Extradition Treaty? And assuming that the result would
indeed be a breach, is there any conflict between pri176
176

vate respondents basic due process rights and the provisions

of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court
has elected to go directly into the substantive merits of the
case, brushing aside peripheral procedural matters which
concern the proceedings in Civil Case No. 99-94684,
particularly the propriety of the filing of the petition therein,
and of the issuance of the TRO of August 17, 1999 by the trial
court.
To be sure, the issues call for a review of the extradition
procedure. The RP-US Extradition Treaty which was
executed only on November 13, 1994, ushered into force the
implementing provisions of Presidential Decree No. 1069,
also called as the Philippine Extradition Law. Section 2(a)

thereof defines extradition as the removal of an accused from
the Philippines with the object of placing him at the disposal
of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal
investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of
the requesting state or government. The portions of the
Decree relevant to the instant case which involves a charged
and not convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the
Requesting State, addressed to the Secretary of Foreign
Affairs, and shall be accompanied by:
1. 1.The original or an authentic copy of the criminal charge
and the warrant of arrest issued by the authority of the
Requesting State having jurisdiction over the matter, or
some other instruments having equivalent legal force;
2. 2.A recital of the acts for which extradition is requested,
with the fullest particulars as to the name and identity of
the accused, his whereabouts in the Philippines, if known,
the acts or omissions complained of, and the time and
place of the commission of these acts;
177
VOL. 322, JANUARY 18, 2000
177
14
In accordance with Paragraphs 2 and 3, Article 7 of the

RP-US Extradition Treaty, the executive authority must
ascertain whether or not the request is supported by:
1. 1.Documents, statements, or other types of information

which describe the identity and probable location of the
person sought;
1. 3.The text of the applicable law or a statement of the

contents of said law, and the designation or description of
the offense by the law, sufficient for evaluation of the
request; and
2. 2.A statement of the facts of the offense and the procedural

history of the case;
3. 3.A statement of the provisions of the law describing the
essential elements of the offense for which extradition is
requested;
2. 4.Such other documents or information in support of the

request.
(Section 4, Presidential Decree No. 1069.)
4. 4.A statement of the provisions of law describing the

punishment for the offense;
Section 5 of the Presidential Decree, which sets forth the

duty of the Secretary of Foreign Affairs, pertinently provides:
. . . (1) Unless it appears to the Secretary of Foreign Affairs that
the request fails to meet the requirements of this law and the
relevant treaty or convention, he shall forward the request together
with the related documents to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to
take charge of the case.
The above provision shows only too clearly that the executive
authority given the task of evaluating the sufficiency of the
request and the supporting documents is the Secretary of
Foreign Affairs. What then is the coverage of this task?
5. 5.A statement of the provisions of the law describing any

time limit on the prosecution or the execution of
punishment for the offense;
178
178

1. 6.Documents, statements, or other types of information
specified in paragraph 3 or paragraph 4 of said Article, as
15
applicable. (Paragraph 2, Article 7, Presidential Decree

No. 1069.)
2. 7.Such evidence as, according to the law of the Requested
State, would provide probable cause for his arrest and
committal for trial if the offense had been committed
there;
3. 8.A copy of the warrant or order of arrest issued by a judge
or other competent authority; and
4. 9.A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must

also see to it that the accompanying documents received in
support of the request had been certified by the principal
diplomatic or consular officer of the Requested State resident
in the Requesting State (Embassy Note No. 052 from U.S.
Embassy; Embassy Note No. 951309 from the Department of
Foreign Affairs).
Upon a finding made by the Secretary of Foreign Affairs that

the extradition request and its supporting documents are
sufficient and complete in form and substance, he shall
deliver the same to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office
to take charge of the case (Paragraph [1], Section 5, P.D. No.
1069). The lawyer designated shall then file a written
petition with the proper regional trial court of the province or
city, with a prayer that the court take the extradition request
under consideration (Paragraph [2], ibid.).
179
VOL. 322, JANUARY 18, 2000
179
In this light, Paragraph 3, Article 3 of the Treaty provides

that [e]xtradition shall not be granted if the executive
authority of the Requested State determines that the request
is politically motivated, or that the offense is a military
offense which is not punishable under non-military penal
legislation.
The presiding judge of the regional trial court, upon receipt of

the petition for extradition, shall, as soon as practicable,
issue an order summoning the prospective extraditee to
appear and to answer the petition on the day and hour fixed
in the order. The judge may issue a warrant of arrest if it
appears that the immediate arrest and temporary detention
of the accused will best serve the ends of justice (Paragraph
[1], Section 6, ibid.), particularly to prevent the flight of the
prospective extraditee.
The Extradition Petition
The Extradition Hearing

16
The Extradition Law does not specifically indicate whether

the extradition proceeding is criminal, civil, or a special
proceeding. Nevertheless, Paragraph [1], Section 9 thereof
provides that in the hearing of the extradition petition, the
provisions of the Rules of Court, insofar as practicable and
not inconsistent with the summary nature of the proceedings,
shall apply. During the hearing, Section 8 of the Decree
provides that the attorney having charge of the case may,
upon application by the Requesting State, represent the
latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a
decision granting the extradition and giving the reasons
therefor upon a showing of the existence of a prima
facie case, or dismiss the petition (Section 10, ibid.). Said
decision is appealable to the Court of Appeals, whose decision
shall be final and immediately executory (Section 12, ibid.).
The provisions of the Rules of Court governing appeal in
criminal cases in the Court of Appeals shall apply in the
aforementioned appeal, except for the required 15-day period
to file brief (Section 13, ibid.).
The trial court determines whether or not the offense
mentioned in the petition is extraditable based on the
application of the dual criminality rule and other conditions
mentioned in Article 2 of the RP-US Extradition Treaty. The
trial court also determines whether or not the offense for
which extradition is requested is a political one (Paragraph
[1], Article 3, RP-US Extradition Treaty).
180
180

With the foregoing abstract of the extradition proceedings as

backdrop, the following query presents itself: What is the
nature of the role of the Department of Justice at the
evaluation stage of the extradition proceedings?
A strict observance of the Extradition Law indicates that
the only duty of the Secretary of Justice is to file the
extradition petition after the request and all the supporting
papers are forwarded to him by the Secretary of Foreign
Affairs. It is the latter official who is authorized to evaluate
the extradition papers, to assure their sufficiency, and under
Paragraph [3], Article 3 of the Treaty, to determine whether
or not the request is politically motivated, or that the offense
is a military offense which is not punishable under nonmilitary penal legislation. Ipso facto, as expressly provided in
Paragraph [1], Section 5 of the Extradition Law, the
Secretary of Justice has the ministerial duty of filing the
extradition papers.
However, looking at the factual milieu of the case before
us, it would appear that there was failure to abide by the
provisions of Presidential Decree No. 1069. For while it is
true that the extradition request was delivered to the
17
Department of Foreign Affairs on June 17, 1999, the

following day or less than 24 hours later, the Department of
Justice received the request, apparently without the
Department of Foreign Affairs discharging its duty of
thoroughly evaluating the same and its accompanying
documents. The statement of an assistant secretary at the
Department of Foreign Affairs that his Department, in this
regard, is merely acting as a post office, for which reason he
simply forwarded the request to the Department of Justice,
indicates the magnitude of the error of the Department of
Foreign Affairs in taking lightly its responsibilities.
Thereafter, the Department of Justice took it upon itself to
determine the completeness of the documents and to evaluate
the same to find out whether they comply with the
requirements laid down in the Extradition Law and the RPUS Extradition Treaty. Petitioner ratiocinates in this
connection that although the Department of Justice had no
obligation to evaluate the extradition documents, the
Department also had to go over them so as to be able to
prepare
181
VOL. 322, JANUARY 18, 2000

181
an extradition petition (tsn, August 31, 1999, pp. 24-25).

Notably, it was also at this stage where private respondent
insisted on the following: (1) the right to be furnished the
request and the supporting papers; (2) the right to be heard
which consists in having a reasonable period of time to
oppose the request, and to present evidence in support of the
opposition; and (3) that the evaluation proceedings be held in
abeyance pending the filing of private respondents opposition
to the request.
The two Departments seem to have misread the scope of
their duties and authority, one abdicating its powers and the
other enlarging its commission. The Department of Foreign
Affairs, moreover, has, through the Solicitor General, filed a
manifestation that it is adopting the instant petition as its
own, indirectly conveying the message that if it were to
evaluate the extradition request, it would not allow private
respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of
regularity that the Department of Foreign Affairs thoroughly
reviewed the extradition request and supporting documents
and that it arrived at a well-founded judgment that the
request and its annexed documents satisfy the requirements
of law. The Secretary of Justice, eminent as he is in the field
of law, could not privately review the papers all by himself.
He had to officially constitute a panel of attorneys. How then
could the DFA Secretary or his undersecretary, in less than
one day, make the more authoritative determination?
18
The evaluation process, just like the extradition

proceedings proper, belongs to a class by itself. It issui
generis. It is not a criminal investigation, but it is also
erroneous to say that it is purely an exercise of ministerial
functions. At such stage, the executive authority has the
power: (a) to make a technical assessment of the
completeness and sufficiency of the extradition papers; (b) to
outrightly deny the request if on its face and on the face of
the supporting documents the crimes indicated are not
extraditable; and (c) to make a determination whether or not
the request is politically motivated, or that the offense is a
military one which is not pun182
182

ishable under non-military penal legislation (tsn, August 31,

1999, pp. 28-29; Article 2 and Paragraph [3], Article 3, RPUS Extradition Treaty). Hence, said process may be
characterized as an investigative or inquisitorial process in
contrast to a proceeding conducted in the exercise of an
administrative bodys quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves:
(a) taking and evaluation of evidence; (b) determining facts
based upon the evidence presented; and (c) rendering an
order or decision supported by the facts proved (De Leon,

Administrative Law: Text and Cases, 1993 ed., p. 198,
citing Morgan vs. United States, 304 U.S. 1). Inquisitorial
power, which is also known as examining or investigatory
power, is one of the determinative powers of an
administrative body which better enables it to exercise its
quasi-judicial authority (Cruz, Phil. Administrative Law,
1996 ed., p. 26). This power allows the administrative body to
inspect the records and premises, and investigate the
activities, of persons or entities coming under its jurisdiction
(Ibid., p. 27), or to require disclosure of information by means
of accounts, records, reports, testimony of witnesses,
production of documents, or otherwise (De Leon, op. cit., p.
64).
The power of investigation
organizing, and anlyzing evidence,
tool in an administrative agencys
making or quasi-judicial functions.
indispensable to prosecution.
consists in gathering,
which is a useful aid or
performance of its ruleNotably, investigation is
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported),

the Court had occasion to rule on the functions of an
investigatory body with the sole power of investigation. It
does not exercise judicial functions and its power is limited to
investigating the facts and making findings in respect
thereto. The Court laid down the test of determining whether
an administrative body is exercising judicial functions or
merely investigatory functions: Adjudication signifies the
exercise of power and authority to adjudicate upon the rights
19
and obligations of the parties before it. Hence, if the only

purpose for investigation is to evaluate evidence submitted
before it based on the
183
VOL. 322, JANUARY 18, 2000
183

facts and circumstances presented to it, and if the agency is
not authorized to make a final pronouncement affecting the
parties, then there is an absence of judicial discretion and
judgment.
The above description in Ruperto applies to an
administrative body authorized to evaluate extradition
documents. The body has no power to adjudicate in regard to
the rights and obligations of both the Requesting State and
the prospective extraditee. Its only power is to determine
whether the papers comply with the requirements of the law
and the treaty and, therefore, sufficient to be the basis of an
extradition petition. Such finding is thus merely initial and
not final. The body has no power to determine whether or not
the extradition should be effected. That is the role of the
court. The bodys power is limited to an initial finding of
whether or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary

investigations, the evaluation procedure is characterized by
certain peculiarities. Primarily, it sets into motion the wheels
of the extradition process. Ultimately, it may result in the
deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the
provisional arrest of the prospective extraditee pending the
submission of the request. This is so because the Treaty
provides that in case of urgency, a contracting party may
request the provisional arrest of the person sought pending
presentation of the request (Paragraph [1], Article 9, RP-US
Extradition Treaty), but he shall be automatically discharged
after 60 days if no request is submitted (Paragraph 4).
Presidential Decree No. 1069 provides for a shorter period of
20 days after which the arrested person could be discharged
(Section 20[d]). Logically, although the Extradition Law is
silent on this respect, the provisions only mean that once a
request is forwarded to the Requested State, the prospective
extraditee may be continuously detained, or if not,
subsequently rearrested (Paragraph [5], Article 9, RP-US
Extradition Treaty), for he will only be discharged if no
request is submitted. Practically, the purpose of this
detention is to prevent his possible flight from the
184
184

20
135; Escobedo vs. Illinois, 378 U.S. 478;Gideon vs.

Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S.
436).
Requested State. Second, the temporary arrest of the
prospective extraditee during the pendency of the extradition
petition in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective
extraditees liberty as early as during the evaluation stage. It
is not only an imagined threat to his liberty, but a very
imminent one.
Because of these possible consequences, we conclude that
the evaluation process is akin to an administrative agency
conducting an investigative proceeding, the consequences of
which are essentially criminal since such technical
assessment sets off or commences the procedure for, and
ultimately, the deprivation of liberty of a prospective
extraditee. As described by petitioner himself, this is a tool
for criminal law enforcement (p. 78, Rollo). In essence,
therefore, the evaluation process partakes of the nature of a
criminal investigation. In a number of cases, we had occasion
to make available to a respondent in an administrative case
or investigation certain constitutional rights that are
ordinarily available only in criminal prosecutions. Further, as
pointed out by Mr. Justice Mendoza during the oral
arguments, there are rights formerly available only at the
trial stage that had been advanced to an earlier stage in the
proceedings, such as the right to counsel and the right
against self-incrimination (tsn, August 31, 1999, p.
In Pascual v. Board of Medical Examiners (28 SCRA

344 [1969]), we held that the right against self-incrimination
under Section 17, Article III of the 1987 Constitution which is
ordinarily available only in criminal prosecutions, extends to
administrative proceedings which possess a criminal or penal
aspect, such as an administrative investigation of a licensed
physician who is charged with immorality, which could result
in his loss of the privilege to practice medicine if found guilty.
The Court, citing the earlier case of Cabal vs. Kapunan (6
SCRA 1059 [1962]), pointed out that the revocation of ones
license as a medical practitioner, is an even greater
deprivation than forfeiture of property.
185
VOL. 322, JANUARY 18, 2000
185

Cabal vs. Kapunan (supra) involved an administrative charge
of unexplained wealth against a respondent which was filed
under Republic Act No. 1379, or the Anti-Graft Law. Again,
we therein ruled that since the investigation may result in
forfeiture of property, the administrative proceedings are
deemed criminal or penal, and such forfeiture partakes the
21
nature of a penalty. There is also the earlier case of Almeda,

Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing
American jurisprudence, laid down the test to determine
whether a proceeding is civil or criminal: If the proceeding is
under a statute such that if an indictment is presented the
forfeiture can be included in the criminal case, such
proceeding is criminal in nature, although it may be civil in
form; and where it must be gathered from the statute that
the action is meant to be criminal in its nature, it cannot be
considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense
charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of
deprivation of ones property or property right. No less is this
true, but even more so in the case before us, involving as it
does the possible deprivation of liberty, which, based on the
hierarchy of constitutionally protected rights, is placed
second only to life itself and enjoys precedence over property,
for while forfeited property can be returned or replaced, the
time spent in incarceration is irretrievable and beyond
recompense.
By comparison, a favorable action in an extradition
request exposes a person to eventual extradition to a foreign
country, thus saliently exhibiting the criminal or penal aspect
of the process. In this sense, the evaluation procedure is akin
to a preliminary investigation since both procedures may
have the same resultthe arrest and imprisonment of the
respondent or the person charged. Similar to the evaluation
stage of extradition proceedings, a preliminary investigation,

which may result in the filing of an information against the
respondent, can possibly lead to his arrest, and to the
deprivation of his liberty.
186
186

Petitioners reliance on Wright vs. Court of Appeals(235

SCRA 241 [1992]) (p. 8, Petitioners Memorandum) that the
extradition treaty is neither a piece of criminal legislation
nor a criminal procedural statute is not well-taken. Wright is
not authority for petitioners conclusion that his preliminary
processing is not akin to a preliminary investigation. The
characterization of a treaty in Wright was in reference to the
applicability of the prohibition against an ex post facto law. It
had nothing to do with the denial of the right to notice,
information, and hearing.
As early as 1884, the United States Supreme Court ruled
that any legal proceeding enforced by public authority,
whether sanctioned by age or custom, or newly devised in the
discretion of the legislative power, in furtherance of the
general public good, which regards and preserves these
principles of liberty and justice, must be held to be due
process of law (Hurtado vs. California, 110 U.S. 516).
22
Compliance with due process requirements cannot be deemed

non-compliance with treaty commitments.
The United States and the Philippines share a mutual
concern about the suppression and punishment of crime in
their respective jurisdictions. At the same time, both States
accord common due process protection to their respective
citizens.
The due process clauses in the American and Philippine
Constitutions are not only worded in exactly identical
language and terminology, but more importantly, they are
alike in what their respective Supreme Courts have
expounded as the spirit with which the provisions are
informed and impressed, the elasticity in their
interpretation, their dynamic and resilient character which
make them capable of meeting every modern problem, and
their having been designed from earliest time to the present
to meet the exigencies of an undefined and expanding future.
The requirements of due process are interpreted in both, the
United States and the Philippines as not denying to the law
the capacity for progress and improvement. Toward this
effect and in order to avoid the confines of a legal straitjacket,
the courts instead prefer to have the meaning of the due
process clause gradually ascertained
187
VOL. 322, JANUARY 18, 2000
187

by the process of inclusion and exclusion in the course of the
decisions of cases as they arise (Twining vs. New Jersey, 211
U.S. 78). Capsulized, it refers to the embodiment of the
sporting idea of fair play (Ermita-Malate Hotel and Motel
Owners Association vs. City Mayor of Manila, 20 SCRA
849 [1967]). It relates to certain immutable principles of
justice which inhere in the very idea of free government
(Holden vs. Hardy,169 U.S. 366).
Due process is comprised of two componentssubstantive
due process which requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty, or
property, and procedural due process which consists of the
two basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and competent
tribunal (Cruz,Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic
rights of notice and hearing pervade not only in criminal and
civil proceedings, but in administrative proceedings as well.
Non-observance of these rights will invalidate the
proceedings. Individuals are entitled to be notified of any
pending case affecting their interests, and upon notice, they
may claim the right to appear therein and present their side
and to refute the position of the opposing parties (Cruz, Phil.
Administrative Law, 1996 ed., p. 64).
23
In a preliminary investigation which is an administrative

investigatory proceeding, Section 3, Rule 112 of the Rules of
Court guarantees the respondents basic due process rights,
granting him the right to be furnished a copy of the
complaint, the affidavits, and other supporting documents,
and the right to submit counter-affidavits and other
supporting documents within ten days from receipt thereof.
Moreover, the respondent shall have the right to examine all
other evidence submitted by the complainant.
These twin rights may, however, be considered dispensable
in certain instances, such as:
1. 1.In proceedings where there is an urgent need for
immediate action, like the summary abatement of a
nuisance per
188
188

1. se (Article 704, Civil Code), the preventive suspension of a
public servant facing administrative charges (Section 63,
Local Government Code, B.P. Blg. 337), the padlocking of
filthy restaurants or theaters showing obscene movies or
like establishments which are immediate threats to public
health and decency, and the cancellation of a passport of a

person sought for criminal prosecution;
2. 2.Where there is tentativeness of administrative action,
that is, where the respondent is not precluded from
enjoying the right to notice and hearing at a later time
without prejudice to the person affected, such as the
summary distraint and levy of the property of a delinquent
taxpayer, and the replacement of a temporary appointee;
and
3. 3.Where the twin rights have previously been offered but
the right to exercise them had not been claimed. Applying
the above principles to the case at bar, the query may be
asked: Does the evaluation stage of the extradition
proceedings fall under any of the described situations
mentioned above?
Let us take a brief look at the nature of American extradition

proceedings which are quite noteworthy considering that the
subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate
rendition or extradition which is based on the Extradition
Clause in the U.S. Constitution (Art. IV, 2 cl 2), and
international extradition proceedings. In interstate rendition
or extradition, the governor of the asylum state has the duty
to deliver the fugitive to the demanding state. The
Extradition Clause and the implementing statute are given a
liberal construction to carry out their manifest purpose,
which is to effect the return as swiftly as possible of persons
for trial to the state in which they have been charged with
24
crime (31A Am Jur 2d 754-755). In order to achieve

extradition of an alleged fugitive, the requisition papers or
the demand must be in proper form, and all the elements or
jurisdictional facts essential to the extradition must appear
on the face of the papers, such as the allegation that the
person demanded was in the
indictment, information, affidavit, or judgment of conviction

or sentence and other instruments accompanying the demand
or requisitions be furnished and delivered to the fugitive or
his attorney is directory. However, the right being such a basic
one has been held to be a right mandatory on demand
(Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158
Tex. Cr. 407 and Ex parte Tucker,Cr., 324, S.W. 2d 853).
189
VOL. 322, JANUARY 18, 2000
189

demanding state at the time the offense charged was
committed, and that the person demanded is charged with
the commission of the crime or that prosecution has been
begun in the demanding state before some court or
magistrate (35 C.J.S. 406-407). The extradition documents
are then filed with the governor of the asylum state, and
must contain such papers and documents prescribed by
statute, which essentially include a copy of the instrument
charging the person demanded with a crime, such as an
indictment or an affidavit made before a magistrate.
Statutory requirements with respect to said charging
instrument or papers are mandatory since said papers are
necessary in order to confer jurisdiction on the governor of
the asylum state to effect the extradition (35 C.J.S. 408410). A statutory provision requiring duplicate copies of the
In international proceedings, extradition treaties

generally provide for the presentation to the executive
authority of the Requested State of a requisition or demand
for the return of the alleged offender, and the designation of
the particular officer having authority to act in behalf of the
demanding nation (31A Am Jur2d 815).
In petitioners memorandum filed on September 15, 1999,
he attached thereto a letter dated September 13, 1999 from
the Criminal Division of the U.S. Department of Justice,
summarizing the U.S. extradition procedures and principles,
which are basically governed by a combination of treaties
(with special reference to the RP-US Extradition Treaty),
federal statutes, and judicial decisions, to wit:
1. 1.All requests for extradition are transmitted through the
diplomatic channel. In urgent cases, requests for the
provisional arrest of an individual may be made directly by
the Philippine Department of Justice to the U.S.
Department of Justice, and vice190
25
190
the defendant is being sought for offenses for which the

applicable treaty permits extradition; and (c) there is
probable cause to believe that the defendant is the person
sought and that he committed the offenses charged (Ibid.)

1. versa. In the event of a provisional arrest, a formal request
for extradition is transmitted subsequently through the

diplomatic channel.
2. 2.The Department of State forwards the incoming

Philippine extradition request to the Department of
Justice. Before doing so, the Department of State prepares
a declaration confirming that a formal request has been
made, that the treaty is in full force and effect, that under
Article 17 thereof the parties provide reciprocal legal
representation in extradition proceedings, that the
offenses are covered as extraditable offenses under Article
2 thereof, and that the documents have been authenticated
in accordance with the federal statute that ensures
admissibility at any subsequent extradition hearing.
3. 3.A judge or magistrate judge is authorized to issue a
warrant for the arrest of the prospective extraditee (18
U.S.C. 3184). Said judge or magistrate is authorized to
hold a hearing to consider the evidence offered in support
of the extradition request (Ibid.)
4. 4.At the hearing, the court must determine whether the
person arrested is extraditable to the foreign country. The
court must also determine that (a) it has jurisdiction over
the defendant and jurisdiction to conduct the hearing; (b)
5. 5.The judge or magistrate judge is vested with jurisdiction

to certify extraditability after having received a complaint
made under oath, charging any person found within his
jurisdiction with having committed any of the crimes
provided for by the governing treaty in the country
requesting extradition (Ibid.) [In this regard, it is noted
that a long line of American decisions pronounce that
international extradition proceedings partake of the
character of a preliminary examination before a
committing magistrate, rather than a trial of the guilt or
innocence of the alleged fugitive (31A Am Jur 2d 826.)]
6. 6.If the court decides that the elements necessary for
extradition are present, it incorporates its determinations
in factual findings and conclusions of law and certifies the
persons extraditability. The court then forwards this
certification of extraditability to the Department of State
for disposition by the Secretary of State. The ultimate
decision whether to surrender an individual rests with the
Secretary of State (18 U.S.C. 3186).
191
VOL. 322, JANUARY 18, 2000
191

26
1. 7.The subject of an extradition request may not litigate
questions concerning the motives of the requesting

government in seeking his extradition. However, a person
facing extradition may present whatever information he
deems relevant to the Secretary of State, who makes the
final determination whether to surrender an individual to
the foreign government concerned.
From the foregoing, it may be observed that in the United

States, extradition begins and ends with one entitythe
Department of Statewhich has the power to evaluate the
request and the extradition documents in the beginning, and,
in the person of the Secretaty of State, the power to act or not
to act on the courts determination of extraditability. In the
Philippine setting, it is the Department of Foreign Affairs
which should make the initial evaluation of the request, and
having satisfied itself on the points earlier mentioned (see pp.
10-12), then forwards the request to the Department of
Justice for the preparation and filing of the petition for
extradition. Sadly, however, the Department of Foreign
Affairs, in the instant case, perfunctorily turned over the
request to the Department of Justice which has taken over
the task of evaluating the request as well as thereafter, if so
warranted, preparing, filing, and prosecuting the petition for
extradition.
Private respondent asks what prejudice will be caused to

the U.S. Government should the person sought to be
extradited be given due process rights by the Philippines in
the evaluation stage. He emphasizes that petitioners
primary concern is the possible delay in the evaluation
process.
We agree with private respondents citation of an
American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve
legitimate state ends is a proper state interest worthy of
cognizance in constitutional adjudication. But the Constitution
recognizes higher values than speed and efficiency. Indeed, one
might fairly say of the Bill of Rights in general, and the Due
Process Clause, in particular, that they were designed to protect
the fragile values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that
192
192

may characterize praiseworthy government officials no less, and

perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
27
The United States, no doubt, shares the same interest as the

Philippine Government that no rightthat of libertysecured not
only by the Bills of Rights of the Philippine Constitution but of the
United States as well, is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondents Memorandum.)
In the Philippine context, this Courts ruling is invoked:

One of the basic principles of the democratic system is that where
the rights of the individual are concerned, the end does not justify
the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with
the Constitution. Mere expediency will not excuse constitutional
shortcuts. There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few
notable exceptions, will excuse the bypassing of an individuals
rights. It is no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a majority of
one even as against the rest of the nation who would deny him that
right (Association of Small Landowners in the Philippines, Inc. vs.
Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioners argument that

extradition is a tool of criminal law enforcement. To be
effective, requests for extradition or the surrender of accused
or convicted persons must be processed expeditiously.
Nevertheless, accelerated or fast-tracked proceedings and
adherence to fair procedures are, however, not always
incompatible. They do not always clash in discord. Summary
does not mean precipitous haste. It does not carry a
disregard of the basic principles inherent in ordered liberty.
Is there really an urgent need for immediate action at the

evaluation stage? At that point, there is no extraditee yet in
the strict sense of the word. Extradition may or may not
occur. In interstate extradition, the governor of the asylum
state may not, in the absence of mandatory statute, be
compelled to
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VOL. 322, JANUARY 18, 2000
193

act favorably (37 C.J.S. 387) since after a close evaluation of
the extradition papers, he may hold that federal and
statutory
requirements,
which
are
significantly
jurisdictional, have not been met (31 Am Jur 2d 819).
Similarly, under an extradition treaty, the executive
authority of the requested state has the power to deny the
behest from the requesting state. Accordingly, if after a
careful examination of the extradition documents the
Secretary of Foreign Affairs finds that the request fails to
meet the requirements of the law and the treaty, he shall not
forward the request to the Department of Justice for the
filing of the extradition petition since non-compliance with
the aforesaid requirements will not vest our government with
jurisdiction to effect the extradition.
28
In this light, it should be observed that the Department of

Justice exerted notable efforts in assuring compliance with
the requirements of the law and the treaty since it even
informed the U.S. Government of certain problems in the
extradition papers (such as those that are in Spanish and
without the official English translation, and those that are
not properly authenticated). In fact, petitioner even admits
that consultation meetings are still supposed to take place
between the lawyers in his Department and those from the
U.S. Justice Department. With the meticulous nature of the
evaluation, which cannot just be completed in an abbreviated
period of time due to its intricacies, how then can we say that
it is a proceeding that urgently necessitates immediate and
prompt action where notice and hearing can be dispensed
with?
Worthy of inquiry is the issue of whether or not there is
tentativeness of administrative action. Is private respondent
precluded from enjoying the right to notice and hearing at a
later time without prejudice to him? Here lies the peculiarity
and deviant characteristic of the evaluation procedure. On
one hand, there is yet no extraditee, but ironically on the
other, it results in an administrative determination which, if
adverse to the person involved, may cause his immediate
incarceration. The grant of the request shall lead to the filing
of the extradition petition in court. The accused (as Section
2[c] of Presidential Decree No. 1069 calls him), faces the
194
194

threat of arrest, not only after the extradition petition is filed

in court, but even during the evaluation proceeding itself by
virtue of the provisional arrest allowed under the treaty and
the implementing law. The prejudice to the accused is thus
blatant and manifest.
Plainly, the notice and hearing requirements of
administrative due process cannot be dispensed with and
shelved aside.
Apart from the due process clause of the Constitution,
private respondent likewise invokes Section 7 of Article III
which reads:
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 above provision guarantees political rights which are

available to citizens of the Philippines, namely: (1) the right
to information on matters of public concern, and (2) the
corollary right of access to official records and documents.
29
The general right guaranteed by said provision is the right to

information on matters of public concern. In its
implementation, the right of access to official records is
likewise conferred. These cognate or related rights are
subject to limitations as may be provided by law
(Bernas, The 1987 Phil. Constitution A Reviewer-Primer,
1997 ed., p. 104) and rely on the premise that ultimately it is
an informed and critical public opinion which alone can
protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private
respondents letter-request dated July 1, 1999 do not fall
under the guarantee of the foregoing provision since the
matters contained in the documents requested are not of
public concern. On the other hand, private respondent argues
that the distinction between matters vested with public
interest and matters which are of purely private interest only
becomes
195
VOL. 322, JANUARY 18, 2000
195

material when a third person, who is not directly affected by
the matters requested, invokes the right to information.
However, if the person invoking the right is the one directly
affected thereby, his right to information becomes absolute.
The concept of matters of public concern escapes exact

definition. Strictly speaking, every act of a public officer in
the conduct of the governmental process is a matter of public
concern (Bernas, The 1987 Constitution of the Republic of the
Philippines, 1996 ed., p. 336). This concept embraces a broad
spectrum of subjects which the public may want to know,
either because these directly affect their lives or simply
because such matters arouse the interest of an ordinary
citizen (Legaspi v. Civil Service Commission,150 SCRA
530 [1987]). Hence, the real party in interest is the people
and any citizen has standing.
When the individual himself is involved in official
government action because said action has a direct bearing
on his life, and may either cause him some kind of
deprivation or injury, he actually invokes the basic right to be
notified under Section 1 of the Bill of Rights and not exactly
the right to information on matters of public concern. As to
an accused in a criminal proceeding, he invokes Section 14,
particularly the right to be informed of the nature and cause
of the accusation against him.
The right to information is implemented by the right of
access to information within the control of the government
(Bernas, The 1987 Constitution of the Republic of the
Philippines, 1996 ed., p. 337). Such information may be
contained in official records, and in documents and papers
pertaining to official acts, transactions, or decisions.
30
In the case at bar, the papers requested by private

respondent pertain to official government action from the
U.S. Government. No official action from our country has yet
been taken. Moreover, the papers have some relation to
matters of foreign relations with the U.S. Government.
Consequently, if a third party invokes this constitutional
provision, stating that the extradition papers are matters of
public concern since they may result in the extradition of a
Filipino, we are afraid
196
196

that the balance must be tilted, at such particular time, in

favor of the interests necessary for the proper functioning of
the government. During the evaluation procedure, no official
governmental action of our own government has as yet been
done; hence the invocation of the right is premature. Later,
and in contrast, records of the extradition hearing would
already fall under matters of public concern, because our
government by then shall have already made an official
decision to grant the extradition request. The extradition of a
fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject
matter of the instant controversy: Would private respondents
entitlement to notice and hearing during the evaluation stage

of the proceedings constitute a breach of the legal duties of
the Philippine Government under the RP-Extradition
Treaty? Assuming the answer is in the affirmative, is there
really a conflict between the treaty and the due process
clause in the Constitution?
First and foremost, let us categorically say that this is not
the proper time to pass upon the constitutionality of the
provisions of the RP-US Extradition Treaty nor the
Extradition Law implementing the same. We limit ourselves
only to the effect of the grant of the basic rights of notice and
hearing to private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and
most fundamental maxims of international law, requires the
parties to a treaty to keep their agreement therein in good
faith. The observance of our countrys legal duties under a
treaty is also compelled by Section 2, Article II of the
Constitution which provides that [t]he 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. Under the doctrine of incorporation, rules of
international law form part of the law of the land and no
further legislative action is needed to make such rules
applicable in the domestic sphere (Salonga & Yap, Public
International Law, 1992 ed., p. 12).
31
197
VOL. 322, JANUARY 18, 2000
197

The doctrine of incorporation is applied whenever municipal
tribunals (or local courts) are confronted with situations in
which there appears to be a conflict between a rule of
international law and the provisions of the constitution or
statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard
for the generally accepted principles of international law in
observance of the Incorporation Clause in the above-cited
constitutional provision (Cruz, Philippine Political Law, 1996
ed., p. 55). In a situation, however, where the conflict is
irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates
that municipal law should be upheld by the municipal courts
(Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs.
Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA
984 [1961]) for the reason that such courts are organs of
municipal law and are accordingly bound by it in all
circumstances (Salonga & Yap, op. cit., p. 13). The fact that
international law has been made part of the law of the land
does not pertain to or imply the primacy of international law
over national or municipal law in the municipal sphere. The
doctrine of incorporation, as applied in most countries,

decrees that rules of international law are given equal
standing with, but are not superior to, national legislative
enactments. Accordingly, the principle lex posterior derogat
priori takes effecta treaty may repeal a statute and a
statute may repeal a treaty. In states where the constitution
is the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be invalidated if
they are in conflict with the constitution (Ibid.).
In the case at bar, is there really a conflict between
international law and municipal or national law? En
contrario, these two components of the law of the land are not
pitted against each other. There is no occasion to choose
which of the two should be upheld. Instead, we see a void in
the provisions of the RP-US Extradition Treaty, as
implemented by Presidential Decree No. 1069, as regards the
basic due process
198
198

rights of a prospective extraditee at the evaluation stage of

extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and
during the judicial determination of the propriety of
32
extradition, the rights of notice and hearing are clearly

granted to the prospective extraditee. However, prior thereto,
the law is silent as to these rights. Reference to the U.S.
extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these
rights. Consequently, he describes the evaluation procedure
as an ex parte technical assessment of the sufficiency of the
extradition request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply
the rules of fair play. An application of the basic twin due
process rights of notice and hearing will not go against the
treaty or the implementing law. Neither the Treaty nor the
Extradition Law precludes these rights from a prospective
extraditee. Similarly, American jurisprudence and procedures
on extradition pose no proscription. In fact, in interstate
extradition proceedings as explained above, the prospective
extraditee may even request for copies of the extradition
documents from the governor of the asylum state, and if he
does, his right to be supplied the same becomes a
demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the
Philippine Government to prevent unauthorized disclosure of
confidential information. Hence, the secrecy surrounding the
action of the Department of Justice Panel of Attorneys. The
confidentiality argument is, however, overturned by
petitioners revelation that everything it refuses to make

available at this stage would be obtainable during trial. The
Department of Justice states that the U.S. District Court
concerned has authorized the disclosure of certain grand jury
information. If the information is truly confidential, the veil
of secrecy cannot be lifted at any stage of the extradition
proceedings. Not even during trial.
199
VOL. 322, JANUARY 18, 2000
199

A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the
Extradition Law, as well as American jurisprudence and
procedures on extradition, for any prohibition against the
conferment of the two basic due process rights of notice and
hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in
jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the
evaluation process and a preliminary investigation since both
procedures may result in the arrest of the respondent or the
prospective extraditee. In the evaluation process, a
provisional arrest is even allowed by the Treaty and the
33
Extradition Law (Article 9, RP-US Extradition Treaty; Sec.

20, Presidential Decree No. 1069). Following petitioners
theory, because there is no provision of its availability, does
this imply that for a period of time, the privilege of the writ of
habeas corpus is suspended, despite Section 15, Article III of
the Constitution which states that [t]he privilege of the writ
of habeas corpus shall not be suspended except in cases of
invasion or rebellion when the public safety requires it?
Petitioners theory would also infer that bail is not available
during the arrest of the prospective extraditee when the
extradition petition has already been filed in court since
Presidential Decree No. 1069 does not provide therefor,
notwithstanding Section 13, Article III of the Constitution
which provides that [a]ll persons, except those charged with
offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended .
. . Can petitioner validly argue that since these
contraventions are by virtue of a treaty and hence affecting
foreign relations, the aforestated guarantees in the Bill of
Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that
the essence of due process in administrative proceedings is
200
200

an opportunity to explain ones side or an opportunity to seek
reconsideration of the actions or ruling complained of
(Mirano vs. NLRC, 270 SCRA 96[1997]; Padilla vs.
NLRC, 273 SCRA 457 [1997];PLDT vs. NLRC, 276 SCRA
1 [1997]; Helpmate,
Inc.
vs.
NLRC, 276
SCRA
315 [1997]; Aquinas School vs. Magnaye, 278 SCRA
602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In
essence, procedural due process refers to the method or
manner by which the law is enforced (Corona vs. United
Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]).
This Court will not tolerate the least disregard of
constitutional guarantees in the enforcement of a law or
treaty. Petitioners fears that the Requesting State may have
valid objections to the Requested States non-performance of
its commitments under the Extradition Treaty are
insubstantial and should not be given paramount
consideration.
How then do we implement the RP-US Extradition
Treaty? Do we limit ourselves to the four corners of
Presidential Decree No. 1069?
Of analogous application are the rulings inGovernment
Service Insurance System vs. Court of Appeals (201 SCRA
34
661 [1991]) and Go vs. National Police Commission (271

SCRA 447 [1997]) where we ruled that in summary
proceedings under Presidential Decree No. 807 (Providing for
the Organization of the Civil Service Commission in
Accordance with Provisions of the Constitution, Prescribing
its Powers and Functions and for Other Purposes), and
Presidential Decree No. 971 (Providing Legal Assistance for
Members of the Integrated National Police who may be
charged for Service-Connected Offenses and Improving the
Disciplinary System in the Integrated National Police,
Appropriating Funds Therefor and for other purposes), as
amended by Presidential Decree No. 1707, although
summary dismissals may be effected without the necessity of
a formal investigation, the minimum requirements of due
process still operate. As held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40
is saying is that an employee may be removed or dismissed even
201
VOL. 322, JANUARY 18, 2000
201

without formal investigation, in certain instances. It is equally
clear to us that an employee must be informed of the charges
preferred against him, and that the normal way by which the
employee is so informed is by furnishing him with a copy of the
charges against him. This is a basic procedural requirement that a

statute cannot dispense with and still remain consistent with the
constitutional provision on due process. The second minimum
requirement is that the employee charged with some misfeasance
or malfeasance must have a reasonable opportunity to present his
side of the matter, that is to say, his defenses against the charges
levelled against him and to present evidence in support of his
defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in

nature, yet we upheld the due process rights of the
respondent.
In the case at bar, private respondent does not only face a
clear and present danger of loss of property or employment,
but of liberty itself, which may eventually lead to his forcible
banishment to a foreign land. The convergence of petitioners
favorable action on the extradition request and the
deprivation of private respondents liberty is easily
comprehensible.
We have ruled time and again that this Courts equity
jurisdiction, which is aptly described as justice outside
legality, may be availed of only in the absence of, and never
against, statutory law or judicial pronouncements (Smith
Bell & Co., Inc. vs. Court of Appeals, 267 SCRA
530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA
677 [1997]). The constitutional issue in the case at bar does
not even call for justice outside legality, since private
35
respondents due process rights, although not guaranteed by

statute or by treaty, are protected by constitutional
guarantees. We would not be true to the organic law of the
land if we choose strict construction over guarantees against
the deprivation of liberty. That would not be in keeping with
the principles of democracy on which our Constitution is
premised.
Verily, as one traverses treacherous waters of conflicting
and opposing currents of liberty and government authority,
202
202
SO ORDERED.
Bellosillo, Purisima, Buena and De
JJ., concur.
Leon,
Jr.,
Davide, Jr. (C.J.), I join Mr. Justice Puno in his

dissent.
Puno, J., Please see Dissent.
Vitug, J., See Separate Opinion.
Kapunan, J., See Separate Concurring Opinion.

he must ever hold the oar of freedom in the stronger arm, lest
an errant and wayward course be laid.
WHEREFORE, in view of the foregoing premises, the
instant petition is hereby DISMISSED for lack of merit.
Petitioner is ordered to furnish private respondent copies of
the extradition request and its supporting papers, and to
grant him a reasonable period within which to file his
comment with supporting evidence. The incidents in Civil
Case No. 99-94684 having been rendered moot and academic
by this decision, the same is hereby ordered dismissed.
Mendoza, Pardo and Gonzaga-Reyes,

dissents of Puno and Panganiban, JJ.
JJ., Join
the
Panganiban, J., Please see my Dissenting Opinion.

Quisumbing, J., With concurring opinion.
Ynares-Santiago, J., Please see Separate Concurring
Opinion.
SEPARATE OPINION
VITUG, J.:
The only real issue before the Court, I would take it, is
whether or not private respondent can validly ask for copies
of pertinent documents while the application for extradition
36
against him is still undergoing process by the Executive

Department.
203
VOL. 322, JANUARY 18, 2000
203
I add. The constitutional right to due process secures to

everyone an opportunity to be heard, presupposing
foreknowledge of what he may be up against, and to submit
any evidence that he may wish to proffer in an effort to clear
himself. This right is two-prongedsubstantive and
procedural due processfounded, in the first instance, on
Constitutional or statutory provisions, and in the second
instance, on accepted rules of procedure. Substantive due
process looks into the extrinsic and intrinsic validity of the
law that figures to
3

There is, I agree with the majority, a right of access to such
extradition documents conformably with the provisions of
Article III, Section 7, of the Philippine Constitution. The
constitutional right to free access to information of public
concern is circumscribed only by the fact that the desired
information is not among the species exempted by law from
the operation of the constitutional guaranty and that the
exercise of the right conforms with such reasonable
conditions as may be prescribed by law.
1
There is no hornbook rule to determine whether or not an

information is of public concern. The term public concern
eludes exactitude, and it can easily embrace a broad
spectrum of matters which the public may want to know
either because the subject thereof can affect their lives or
simply because it arouses concern.
2
I am not convinced that there is something so viciously

wrong with, as to deny, the request of private respondent to
be furnished with copies of the extradition documents.
________________
1
Sec. 7. The right of the people to information 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.
2
Legaspi vs. Civil Service Commission, 150 SCRA 530; Valmonte vs.
Belmonte, Jr., 170 SCRA 256.

3
Aniag, Jr. vs. Commission on Elections, 237 SCRA 424; Tupas vs. Court
of Appeals, 193 SCRA 597.

204
204

37
interfere with the right of a person to his life, liberty and

property. Procedural due processthe more litigated of the
twofocuses on the rules that are established in order to
ensure meaningful adjudication in the enforcement and
implementation of the law. Like public concern, the term
due process does not admit of any restrictive definition.
Justice Frankfurter has viewed this flexible concept, aptly I
believe, as being . . . compounded by history, reason, the past
course of decisions, and stout confidence in the democratic
faith. The framers of our own Constitution, it would seem,
have deliberately intended to make it malleable to the
everchanging milieu of society. Hitherto, it is dynamic and
resilient, adaptable to every situation calling for its
application that makes it appropriate to accept an enlarged
concept of the term as and when there is a possibility that
the right of an individual to life, liberty and property might
be diffused. Verily, whenever there is an imminent threat to
the life, liberty or property of any person in any proceeding
conducted by or under the auspices of the State, his right to
due process of law, when demanded, must not be ignored.
4
of an arrest being made on the basis of a mere evaluation by

the Executive on the request for extradition by the foreign
State cannot totally be discounted.
The conclusion reached by the majority, I hasten to add,
does not mean that the Executive Department should be im________________
4
Abraham, Henry J., Some Basic Guidelines of Due Process of Law, The
Lawyers Review, Vol. IX, 30 April 1995, p. 1.

5
Cruz, Isagani A. Constitutional Law, 1995 Ed., pp. 94-95.
205
VOL. 322, JANUARY 18, 2000
205
A danger to the liberty of the extraditee, the private

respondent, is real. Article 9 of the Extradition Treaty
between the Government of the Republic of the Philippines
and the Government of the United States of America provides
that in case of urgency, a Contracting Party may request the
provisional arrest of the person prior to the presentation of
the request for extradition. I see implicit in this provision that
even after the request for extradition is made and before a
petition for extradition is filed with the courts, the possibility

peded in its evaluation of the extradition request. The right
of the extraditee to be furnished, upon request, with a copy of
the relevant documents and to file his comment thereon is
not necessarily anathema to the proceedings duly mandated
by the treaty to be made.
I vote to deny the petition.
SEPARATE CONCURRING OPINION
38
KAPUNAN, J.:
I vote to dismiss the petition, both on technical and
substantial grounds.
The petition in the case at bar raises one and only issue,
which is the validity of the Temporary Restraining Order
(TRO) issued by respondent Judge Ralph C. Lantion on
August 9, 1999 in Civil Case No. 99-94684. The TRO directed
respondents in said case to:
x x x maintain the status quo by refraining from committing the
acts complained of; from conducting further proceedings in
connection with the request of the United States Government for
the extradition of the petitioner; from filing the corresponding
Petition with the Regional Trial Court; and from performing any
act directed to the extradition of the petitioner to the United
States, for a period of twenty days from the service on respondents
of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of
Court. (Italics ours.)
1
Annex L, petition.
Petition, p. 4.
206
206

the TRO already mentioned, of respondent Judge that is

being challenged in the petition before us.
Since, as alleged in the petition, a copy of the TRO was
served on respondents below on August 10, 1999, the TRO
ceased to be effective on August 30, 1999; consequently, the
instant petition has become moot and academic. This Court
does not exercise jurisdiction over cases which are moot and
academicor those not ripe for judicial consideration.
3
The petition itself categorically states that (t)he issue sought

to be presented and litigated here is solely-the validity of the
TRO.
2
Notably, there is no allegation in the petition that

respondent Judge is without jurisdiction to hear the case
below or that he has exceeded his jurisdiction in hearing the
same. Nor is there any other act, ruling, order, or decision,
apart from
________________
Assuming that the present case has not become moot and
academic, still, it should be dismissed for lack of merit.
The substantive issues raised in this case are: (a) whether
a person whose extradition is sought by a foreign state has
due process rights under Section 2, Article III of the 1997
Constitution before the Department of Justice as the request
for extradition is being evaluated, or whether due process
rights may be invoked only upon the filing of a petition for
39
extradition before a regional trial court; and (b) whether or

not private respondent has a right of access to extradition
documents under Section 7, Article III of the 1997
Constitution.
Petitioner contends that due process rights such as the
right to be informed of the basis of the request for extradition
and to have an opportunity to controvert are not provided in
the extradition treaty or in P.D. 1069 and therefore does not
exist in this stage of the proceedings. Further, he argues that
the documents sought to be furnished to private respondent
only involve private concerns, and not matters of public
concern to which the people have a constitutional right to
access.
While the evaluation process conducted by the
Department of Justice is not exactly a preliminary
investigation of criminal cases, it is akin to a preliminary
investigation because it involves the basic constitutional
rights of the person sought to be extradited. A person ordered
extradited is arrested, forcibly taken from his house,
separated from his family and delivered to a foreign state.
His rights of abode, to privacy, lib________________
3
Edillon vs. Fernandos, 114 SCRA 153 (1982); Pangilinan vs. Zapata, 69
SCRA 334 (1976).

207
VOL. 322, JANUARY 18, 2000
207

erty and pursuit of happiness are taken away from hima
fate as harsh and cruel as a conviction of a criminal offense.
For this reason, he is entitled to have access to the evidence
against him and the right to controvert them.
While the extradition treaty and P.D. 1069 do not provide
for a preliminary investigation, neither does either prohibit
it. The right to due process is a universal basic right which is
deemed written into our laws and treaties with foreign
countries.
Like a preliminary investigation, the evaluation by the
Department of Justice of the extradition request and its
accompanying documents is to establish probable cause and
to secure the innocent against hasty, malicious and
oppressive prosecution.
In this connection, it should be stressed that the
evaluation procedure of the extradition request and its
accompanying documents by the Department of Justice
cannot be characterized as a mere ex-parte technical
assessment of the sufficiency thereof. The function and
responsibilities of the Department of Justice in evaluating
the extradition papers involve the exercise of judgment. They
40
involve a determination whether the request for extradition

conforms fully to the requirements of the extradition treaty
and whether the offense is extraditable. These include,
among others, whether the offense for which extradition is
requested is a political or military offense (Article 3); whether
the documents and other informations required under Article
7(2) have been provided (Article 7); and whether the
extraditable offense is punishable under the laws of both
contracting parties by deprivation of liberty for a period of
more than one year (Article 2). Consequently, to arrive at a
correct judgment, the parties involved are entitled to be
heard if the requirements of due process and equal protection
are to be observed.
With respect to petitioners claim that private respondent
has no right to demand access to the documents relating to
the request for extradition, suffice it to say, that any
document used in a proceeding that would jeopardize a
persons constitutional rights is a matter of public concern.
As Martin
208
208

Luther King said, injustice anywhere is a threat to justice

everywhere, so any violation of ones rights guaranteed by
the Bill of Rights is everybodys concern because they, one

way or another, directly or indirectly, affect the rights of life
and liberty of all the citizens as a whole.
Due process rights in a preliminary investigation is now
an established principle. The respondent has a right of access
to all of the evidence. He has the right to submit
controverting evidence. The prosecuting official who conducts
the preliminary investigation is required to be neutral,
objective, and impartial in resolving the issue of probable
cause. I see no reason why the same rights may not be
accorded a person sought to be extradited at the stage where
the Department of Justice evaluates whether a petition for
extradition would be filed before a regional trial court. If
denied such rights, not only denial of due process rights but
of equal protection may be raised.
It is suggested that after a petition for extradition is filed
with a regional trial court, the person sought to be extradited
may exercise all due process rights. He may then have access
to all the records on the basis of which the request for
extradition has been made. He may controvert that evidence
and raise all defenses he may consider appropriate. That, it is
urged, meets the due process requirement.
But why must he wait until the petition for extradition is
filed? As succinctly expressed, if the right to notice and
hearing is to serve its full purpose, then, it is clear that it
must be granted at a time when the deprivation can still be
prevented. Like the filing of an information in a criminal
4
41
case, the mere filing of a petition for extradition causes

immediate impairment of the liberty of the person sought to
be extradited and a substantial curtailment of other rights.
His arrest may be immediately ordered by the regional trial
court. He would be compelled to face an open and public trial.
He will be constrained to seek the assistance of counsel and
incur other expenses of litigation. The public eye would be
directed at him
________________
4
Stanley v. Illinois, 1405 U.S. 645, 647.
The human rights of person, whether citizen or alien, and

the rights of the accused guaranteed in our Constitution
should take precedence over treaty rights claimed by a
contracting state. Stated otherwise, the constitutionally
mandated duties of our government to the individual deserve
preferential consideration when they collide with its treaty
obligations to the government of another state. This is so
although we recognize treaties as a source of binding
obligations under generally accepted principles of
international law incorporated in our Constitution as part of
the law of the land.
For this primordial reason, I vote to DENY the petition.
209
VOL. 322, JANUARY 18, 2000
209

with all the concomitant intrusions to his right to privacy.
Where the liberty of a person is at risk, and extradition
strikes at the very core of liberty, invocation of due process
rights can never be too early.
CONCURRING OPINION
QUISUMBING, J.:
As I concur in the result reached by the ponencia of Justice
Melo, may I just add my modest observations.
Moreover, considering that the Extradition Treaty between

the USA and Philippines appears mute on the specific issue
before us, the Courtin the exercise of its judicial power to
find and state what the law ishas this rare opportunity of
setting a precedent that enhances respect for human rights
and strengthens due process of law.
As both majority and dissenting colleagues in the Court
will recognize, American authorities follow two tracks in
extradition proceedings: (1) the interstate practice where,
pursuant to statute, the state Executive upon demand
furnishes the would-be extraditee or counsel copies of
pertinent documents as well as the request for extradition;
and (2) the international practice where the Executive
department need not initially grant notice and hearing at all.
Rules of reciprocity and comity, however, should not bar us
42
from applying internationally now what appears the more

reasonable and hu210
210

mane procedure, that is, the interstate practice among

Americans themselves. For in this case the American people
should be among the most interested parties.
Truly, what private respondent is asking our Executive
department (notice, copies of documents, and the opportunity
to protect himself at the earliest time against probable peril)
does not, in my view, violate our Extradition Treaty with the
USA. His request if granted augurs well for transparency in
interstate or intergovernmental relations rather than secrecy
which smacks of medieval diplomacy and the inquisition
discredited long ago.
That private respondent is a Filipino citizen is not decisive
of the issue here, although it is obviously pertinent. Even if
he were a resident alien (other than American perhaps), he
is, in my view, entitled to our full protection against the
hazards of extradition (or deportation, similarly) from the
very start. More so because, looking at the facts adduced at
the hearing and on the record of this case, the charges
against him involve or are comingled with, if not rooted in,

certain offenses of a political nature or motivation such as the
ones involving alleged financial contributions to a major
American political party. If so, long established is the
principle that extradition could not be utilized for political
offenses or politically motivated charges.
There may, of course, be other charges against private
respondent in the USA. But then they are, in my view,
already tainted there with political color due to the highly
charged partisan campaign atmosphere now prevailing. That
private respondents cases will be exploited as political fodder
there is not far-fetched, hence the need here for cautious but
comprehensive deliberation on the matter at bar. For, above
all, it is not only a Treaty provision we are construing; it is
about constitutional and human rights we are most
concerned.
211
VOL. 322, JANUARY 18, 2000
211

CONCURRING OPINION
YNARES-SANTIAGO, J.:
43
I concur in the ponencia of Mr. Justice Jose A.R. Melo with

its conceptive analysis of a citizens right to be given what is
due to him. I join in his exposition of this Courts
constitutional duty to strike the correct balance between
overwhelming Government power and the protection of
individual rights where only one person is involved.
However, I am constrained to write this short concurrence
if only to pose the question of why there should be any debate
at all on a plea for protection of ones liberty which, if
granted, will not result in any meaningful impediment of
thwarting any state policy and objectives.
I see no reason why respondent Mark Jimenez, or other
citizens not as controversial or talked about, should first be
exposed to the indignity, expense, and anxiety of a public
denunciation in court before he may be informed of what the
contracting states in an extradition treaty have against him.
There is no question that everything which respondent
Jimenez now requests will be given to him during trial. Mr.
Jimenez is only petitioning that, at this stage, he should be
informed why he may be deported from hisown country.
I see no ill effects which would arise if the extradition
request and supporting documents are shown to him now,
instead of later.
Petitioner Secretary of Justice states that his action on the
extradition request and its supporting documents will merely
determine whether or not the Philippines is complying with
its treaty obligations. He adds that, therefore, the

constitutional rights of an accused in all criminal
prosecutions are not available to the private respondent.
The July 13, 1999 reply-letter from petitioner states the
reasons why he is denying respondent Jimenezs requests. In
short, the reasons are:
212
212

1. 1.In evaluating the documents, the Department merely
determines whether the procedures and requirements

under the relevant law and treaty have been complied with
by the Requesting Government. The constitutional rights
of the accused in all criminal prosecutions are, therefore,
not available.
2. 2.The United States Government has requested the

Philippine Government to prevent unauthorized disclosure
of certain grand jury information.
3. 3.The petitioner cannot hold in abeyance proceedings in
connection with an extradition request. For extradition to
be an effective tool of criminal law enforcement, requests
for surrender of accused or convicted persons must be
processed expeditiously.
44
I respectfully submit that any apprehenshions in the Court

arising from a denial of the petitionbreach of an
international obligation, rupture of state relations, forfeiture
of confidence, national embarrassment, and a plethora of
other equally undesirable consequencesare more illusory
than real. Our country is not denying the extradition of a
person who must be extradited. Not one provision of the
extradition treaty is violated. I cannot imagine the United
States taking issue over what, to it, would be a minor
concession, perhaps a slight delay, accorded in the name of
human rights. On the other hand, the issue is fundamental
in the Philippines. A citizen is invoking the protection, in the
context of a treaty obligation, of rights expressly guaranteed
by the Philippine Constitution.
Until proved to be a valid subject for extradition, a person
is presumed innocent or not covered by the sanctions of either
criminal law or international treaty. At any stage where a
still prospective extraditee only seeks to know so that he can
prepare and prove that he should not be extradited, there
should be no conflict over the extension to him of
constitutional protections guaranteed to aliens and citizens
alike.
Petitioner cites as a reason for the denial of respondents
requests, Article 7 of the Treaty. Article 7 enumerates the
required documents and establishes the procedures under
which the documetns shall be submitted and admitted as
evidence. There is no specific provision on how the Secretary
213
VOL. 322, JANUARY 18, 2000
213

of Foreign Affairs should conduct his evaluation. The
Secretary of Justice is not even in the picture at this stage.
Under petitioners theory, silence in the treaty over a citizens
rights during the evaluation stage is interpreted as
deliberate exclusion by the contracting states of the right to
know. Silence is interpreted as the exclusion of the right to a
preliminary examination or preliminary investigation
provided by the laws of either one of the two states.
The right to be informed of charges which may lead to
court proceedings and result in a deprivation of liberty is
ordinarily routine. It is readily available to one against whom
the states coercive power has already been focused. I fail to
see how silence can be interpreted as exclusion. The treaty is
silent because at this stage, the preliminary procedure is still
an internal matter. And when a law or treaty is silent, it
means a right or privilege may be granted. It is not the other
way around.
The second reason alleging the need for secrecy and
confidentiality is even less convincing. The explanation of
petitioner is self-contradictory. On one hand, petitioner
asserts that the United States Government requested the
45
Philippine Government to prevent unauthorized disclosure of

certain information. On the other hand, petitioner declares
that the United States has already secured orders from
concerned District Courts authorizing the disclosure of the
same grand jury information to the Philippine Government
and its law enforcement personnel.
Official permission has been given. The United States has
no cause to complain about the disclosure of information
furnished to the Philippines.
Moreover, how can grand jury information and documents
be considered confidential if they are going to be introduced
as evidence in adversary proceedings before a trial court? The
only issue is whether or not Mr. Jimenez should be
extradited. His innocence or guilt of any crime will be
determined in an American court. It is there where
prosecution strategies will be essential. If the Contracting
States believed in a total non-divulging of information prior
to court hearings, they
214
214

would have so provided in the extradition treaty. A positive

provision making certain rights unavailable cannot be
implied from silence.
I cannot believe that the United States and the
Philippines with identical constitutional provisions on due
process and basic rights should sustain such a myopic view in
a situation where the grant of a right would not result in any
serious setbacks to criminal law enforcement.
It is obvious that any prospective extraditee wants to know
if his identity as the person indicated has been established.
Considering the penchant of Asians to adopt American
names when in America, the issue of whether or not the
prospective extraditee truly is the person charged in the
United States becomes a valid question. It is not only identity
of the person which is involved. The crimes must also be
unmistakably identified and their essential elements clearly
stated.
There are other preliminary matters in which respondent
is interested. I see nothing in our laws or in the Treaty which
prohibits the prospective extraditee from knowing until after
the start of trial whether or not the extradition treaty applies
to him.
Paraphrasing Hashim vs. Boncan, 71 Phil. 216;Trocio vs.
Manta, 118 SCRA 241 (1982); and Salonga vs. Hon.
Pao, 134 SCRA 438 (1985), the purpose of a preliminary
evaluation is to secure an innocent person against hasty,
46
faulty and, therefore, oppressive proceedings; to protect him

from an open and extensively publicized accusation of crimes;
to spare him the trouble, expense, and anxiety of a public
trial; and also to protect the state from useless and expensive
trials. Even if the purpose is only to determine whether or
not the respondent is a proper subject for extradition, he is
nonetheless entitled to the guarantees of fairness and
freedom accorded to those charged with ordinary crimes in
the Philippines.
The third reason given by petitioner is the avoidance of
delay. Petitioner views the request to be informed as part of
undesirable delaying tactics. This is most unfortunate. Any
request for extradition must be viewed objectively and impar215
VOL. 322, JANUARY 18, 2000
215
respondents participation, the evaluating official discovers a

case of mistaken identity, insufficient pleadings, inadequate
complaints, or any ruinous shortcoming, there would be no
delays during trial. An unnecessary trial with all its
complications would be avoided.
The right to be informed is related to the constitutional
right to a speedy trial. The constitutional guarantee extends
to the speedy disposition of cases before all quasi-judicial and
administrative bodies (Constitution, Art. III, Sec. 16). Speedy
disposition, however, does not mean the deliberate exclusion
of the defendant or respondent from the proceedings. As this
Court ruled in Acebedo vs. Sarmiento, 36 SCRA 247 (1970),
the right to a speedy trial, means one free from vexatious,
capricious and oppressive delays, its salutary objective being
to assure that an innocent person may be free from the
anxiety and expense of a court litigation or, if otherwise, of
having his guilt (in this case, his being extradited)
determined within the shortest possible time compatible with
the presentation and consideration of whatsoever legitimate
defense he may interpose.
tially without any predisposition to granting it and,

therefore, hastening the extradition process.
The right to be informed and the right to a preliminary

hearing are not merely for respondent. They also serve the
interests of the State.
In the first place, any assistance which the evaluating

official may get from the participation of respondent may well
point out deficiencies and insufficiencies in the extradition
documents. It would incur greater delays if these are
discovered only during court trial. On the other hand, if, from
In closing, I maintain that the paramount consideration of

guaranteeing the constitutional rights of individual
respondent override the concerns of petitioner. There should
be no hurried or indifferent effort to routinely comply with all
47
requests for extradition. I understand that this is truer in the

United States than in other countries. Proposed extraditees
are given every legal protection available from the American
justice system before they are extradited. We serve under a
216
216

government of limited powers and inalienable rights. Hence,

this concurrence.
DISSENTING OPINION
PUNO, J.:
If the case at bar was strictly a criminal case which involves

alone the right of an accused to due process, I would have cosigned the ponencia of our esteemed colleague, Mr. Justice
Jose A.R. Melo, without taking half a pause. But the case at
bar does not involve the guilt or innocence of an accused but
the interpretation of an extradition treaty where at stake is
our governments international obligation to surrender to a
foreign state a citizen of its own so he can be tried for an
alleged offense committed within that jurisdiction. The issues
are of first impression and the majority opinion dangerously
takes us to unknown shoals in constitutional and
international laws, hence this dissenting opinion.
Extradition is a well-defined concept and is more a
problem in international law. It is the process by which
persons charged with or convicted of crime against the law of
a State and found in a foreign State are returned by the
latter to the former for trial or punishment. It applies to
those who are merely charged with an offense but have not
been brought to trial; to those who have been tried and
convicted and have subsequently escaped from custody; and
those who have been convicted in absentia. It does not
applyto persons merely suspected of having committed an
offense but against whom no charge has been laid or to a
person whose presence is desired as a witness or for
obtaining or enforcing a civil judgment. Thedefinition covers
the private respondent who is charged with two (2) counts of
conspiracy to commit offense or to defraud the United States,
four (4) counts of attempt to evade or defeat tax, two (2)
counts of fraud by wire, radio or
1
48
________________
1
Weston, Falk, DAmato, International Law and World Order, 2nd ed., p.
630 (1990).
217
VOL. 322, JANUARY 18, 2000
217
protecting the human rights of persons and revealed an

awareness of the need to have international due process of
law regulate international relations.
2
It is also rewarding to have a good grip on the changing

slopes in the landscape of extradition during these different
periods. Extradition was first practiced by the Egyptians,
Chinese, Chaldeans and Assyro-Babylonians but their basis
for allowing extradition was unclear. Sometimes, it was
granted due to pacts; at other times, due to plain good
will. The classical commentators on international law thus
focused their early views on the nature of the duty to
surrender an extraditeewhether the duty is legal or moral
in character. Grotius and de Vattel led the school of thought
that international law imposed a legal dutycalled civitas
maxima to ex3
television, six (6) counts of false statements or entries and

thirty-three (33) counts of election contributions in the name
of another. There is an outstanding warrant of arrest against
the private respondent issued by the US District Court,
Southern District of Florida.
A brief review of the history of extradition law will
illumine our labor. Possibly the most authoritative
commentator on extradition today, M. Cherif Bassiouni,
divides the history of extradition into four (4) periods: (1)
ancient times to seventeenth centurya period revealing
almost exclusive concern for political and religious offenders;
(2) the eighteenth century and half of the nineteenth century
a period of treaty-making chiefly concerned with military
offenders characterizing the condition of Europe during that
period; (3) from 1833 to 1948a period of collective concern
in suppressing common criminality; and (4) post-1948
developments which ushered in a greater concern for
________________
2
International Extradition, United States Law and Practice, 2nd ed., p. 7
(1987).
3
The Practice of Extradition from Antiquity to Modern France and the
United States: A Brief History, 4 B.C. Intl. & Comp. L. Rev. 39 (1981).
218
218

49
tradite criminals. In sharp contrast, Puffendorf and Billot led

the school of thought that the so-called duty was but
an imperfect obligation which could becomeenforceable
only by a contract or agreement between states.
4
Modern nations tilted towards the view of Puffendorf and

Billot that under international law there is no duty to
extradite in the absence of treaty, whether bilateral or
multilateral. Thus, the US Supreme Court in US v.
Rauscher, held: . . . . it isonly in modern times that the
nations of the earth have imposed upon themselves the
obligation of delivering up these fugitives from justice to the
states where their crimes were committed, for trial and
punishment. This has been done generally by treaties . . .
Prior to these treaties, and apart from them there was no
well-defined obligation on one country to deliver up such
fugitives to another; and though such delivery was often
made it was upon the principle of comity . . .
6
Then came the long and still ongoing debate on what

should be the subject of international law. The 20th century
saw the dramatic rise and fall of different types and hues of
authoritarianismthe fascism of Italys Mussolini and
Germanys Hitler, the militarism of Japans Hirohito and the
communism of Russias Stalin, etc. The sinking of these isms
led to the elevation of the rights of the individual against the
state. Indeed, some species of human rights have already
been accorded universal recognition. Today, the drive to
interna7
________________
4
They
were
supported
by scholars
like
Heineccuis,
Burlamaqui,
Rutherford, Schmelzing and Kent. See Shearer, Extradition in International

Law, p. 24 (1971).
5
They were supported by scholars like Voet, Martons, Kuber, Leyser, Lint,
Sealfied, Schmaltz, Mittermaier and Heffter. SeeShearer, supra, p. 24.

6
119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).
See Universal Declaration of Human Rights (1948), The International
Covenant on Economic, Social and Cultural Rights (1966) and The

International Covenant on Civil and Political Rights (1966).
219
VOL. 322, JANUARY 18, 2000
219

tionalize rights of women and children is also on high
gear. The higher rating given to human rights in the
hierarchy of values necessarily led to the re-examination of
the rightful place of the individual in international law.
Given the harshest eye is the moss-covered doctrine
that international law deals only with States and that
individuals are not its subject. For its undesirable corollary is
the sub-doctrine that an individuals right in international
law is a near cipher. Translated in extradition law, the view
that once commanded a consensus is that since a fugitive is a
8
50
mere object and not a subject of international law, he is bereft

of rights. An extraditee, so it was held, is a mere object
transported from one state to the other as an exercise of the
sovereign will of the two states involved. The re-examination
consigned this pernicious doctrine to the museum of
ideas. The new thinkers of international law then gave a
significant shape to the role and rights of the individual in
state-concluded treaties and other international agreements.
So it was declared by then US Ambassador Philip C. Jessup
in audible italics: A very large part of international affairs
and, thus, of the process of international accommodation,
concerns the relations between legal persons known as
states. This is necessarily so. But it is no
220
220
10
________________
8
The Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) otherwise known as Bill of Rights for Women was
adopted by the UN General Assembly in December 1979. As of November
1999, one hundred sixty seven (167) states including the Philippines have
ratified or acceded to it. See Statement of Angela King, Special Adviser to the
Secretary General of the UN on Gender Issues and Advancement of Women,
Judicial Colloquium on the Application of International Human Rights Law
at the Domestic Level, Vienna, Austria, October 27, 1999.
9
Blakesley and Lagodny, Finding Harmony Amidst Disagreement Over
Extradition, Jurisdiction, The Role of Human Rights and Issues of

Extraterritoriality Under International Criminal Law, Vanderbilt Journal of
Transnational Law, Vol. 24, No. 1, p. 44 (1991).
10
See generally Kelsen, Principles of International Law, 2nd ed. (1966);
Korowicz, The Problem of the International Personality of Individuals, 50

Am. J., Intl. Law 553 (1966).

longer novel for the particular interest of the human being to
break through the mass of interstate relationship. The
clarion call to re-engineer a new world order whose dominant
interest would transcend the parochial confines of national
states was not unheeded. Among the world class scholars
who joined the search for the elusive ideological
underpinnings of a new world order were Yale Professor
Myres McDougal and Mr. Justice Florentino Feliciano. In
their seminal work, Law and Minimum World Public Order,
they suggested that the object of the new world order should
be to obtain in particular situations and in the aggregate
flow of situations the outcome of a higher degree of
conformity with the security goals of preservation,
deterrence, restoration, rehabilitation and reconstruction of
all societies comprising the world community. Needless to
stress, all these prescient theses accelerated the move to
recognize certain rights of the individual in international law.
11
12
We have yet to see the final and irrevocable place of

individual rights, especially the rights of an extraditee, in the
realm of international law. In careful language, Bassiouni
observes that today, institutionalized conflicts between
51
states are stillrationalized in terms of sovereignty, national

interest, and national security, while human interests
continue to have limited, though growing impact on the
decision-making processes which translate national values
and goals into specific national and international policy.
13
I belabor the international law aspect of extradition as the

majority opinion hardly gives it a sideglance. It is my humble
submission that the first considerationthat should guide us in
the case at bar is that a bilateral treatythe RP-US Extradi________________
11
The Conquering March of an Idea, Speech before the 72nd Annual
Meeting of the American Bar Association, St. Louis, Mo., September 6, 1949.
12
See also R. Falk and S. Mendlovitz, Strategy of World Order, etc. (1966);
G. Clark and L. Sohn, World Peace Through World Law (1966); Bassiouni,
International Extradition in American Practice and World Public Order, 36
Tenn. L. Rev. 1 (1968).
13
Bassiouni, supra, p. 625.
221
VOL. 322, JANUARY 18, 2000
221

tion Treatyis the subject matter of the litigation. In our
constitutional scheme, the making of a treaty belongs to the
executive and legislative departments of our government.

Between these two departments,the executive has a greater
say in the making of a treaty. Under Section 21, Article VII of
our Constitution, the President has the sole power to
negotiate treaties and international agreements although to
be effecttive, they must be concurred in by at least two thirds
of all the members of the Senate. Section 20 of the same
Article empowers the President to contract or guarantee
foreign loans with the prior concurrence of the Monetary
Board. Section 16 of the same Article gives the President the
power to appoint ambassadors, other public ministers and
consuls subject to confirmation by the Commission on
Appointments. In addition, the President has the power to
deport undesirable aliens. The concentration of these powers
in the person of the President is not without a compelling
consideration. The conduct offoreign relations is full of
complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It
can only be entrusted to that department of government which
can act on the basis of the best available information and can
decide with decisiveness. Beyond debate, the President is the
single most powerful official in our land for Section 1 of
Article VII provides that the executive power shall be vested
in the President of the Philippines, whereas Section 1 of
Article VI states that the legislative power shall be vested in
the Congress of the Philippines which shall consist of a
Senate and a House of Representatives x x x except to the
extent reserved to the people by the provision on initiative
and referendum, while Section 1 of Article VIII provides that
judicial power shall be vested in one Supreme Court and in
52
such lower courts as may be established by law. Thus, we

can see that executive power is vested in the President alone
whereas legislative and judicial powers are shared and
scattered. It is also the President who possesses the most
comprehensive and the most confidential information about
foreign countries for our diplomatic and consular officials
regularly brief him on meaningful events all over the world.
He has also unlimited access to ultra-sensitive
222
222

thereon even while they are still at the evaluation stage by

the petitioner Secretary of Justice, an alter ego of the
President. The delicate questions of what constitutional
rights and to what degree they can be claimed by an
extraditee do not admit of easy answers and have resulted
in discrete approaches the world over. On one end of the pole
is the more liberalEuropean approach. The European Court
of Human Rights embraces the view that an extraditee is
entitled to the benefit of all relevant provisions of the
European Convention for the Protection of Human Rights
and Fundamental Freedoms. It has held that x x x in so far
as a measure of the extradition has consequences adversely
affecting the enjoyment of a convention right, it may,
assuming that the consequences are not too remote, attract
the obligations of a Contracting State under the relevant
convention guarantee. At the other end of the pole is
the more cautious approach of the various Courts of Appeal
in the United States. These courts have beenmore
conservative in light of the principle of separation of
15
16
military intelligence data. In fine, the presidential role in

foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with
equally undesirable consequences.
14
These are some of the dominant policy considerations in

international law that the Court must balance against the
claim of the private respondent that he has a right to be
given the extradition documents against him and to comment
________________
14
US v. Curtiss-Wright Expert Corp., 299 US 304, 57 S Ct. 216, 81 L. ed.
255 (1936).
15
Spencer, The Role of the Charter in Extradition Cases, University of
Toronto L. Rev., vol. 51, pp. 62-63, (Winter, 1993).

16
Spencer, op cit., citing the decision in Soering, 11 E.H.R.R. 439 (1989).
223
53
VOL. 322, JANUARY 18, 2000
223

powers and their faith in the presumptive validity of
executive decisions. By and large, they adhere to therule of
non-inquiry under which the extraditing court refuses to
examine the requesting countrys criminal justice system or
consider allegations that the exraditee will be mistreated or
denied a fair trial in that country.
17
The case at bar, I respectfully submit, does not involve an

irreconcilable conflict between the RP-US Extradition Treaty
and our Constitution where we have to choose one over the
other. Rather, it calls for aharmonization between said treaty
and our Constitution. To achieve this desirable objective, the
Court should consider whether the constitutional rights
invoked by the private respondent have truly been violated
and even assuming so, whether he will be denied
fundamental fairness. It is only when their violation will
destroy the re-spondents right to fundamental fairness that
his constitutional claims should be given primacy.
Given this balancing approach, it is my humble
submission that considering all the facts and facets of the
case, the private respondent has not proved entitlement to the
right he is claiming. The majority holds that the
Constitution, the RP-US extradition treaty and P.D. No.
1069 do not prohibit respondents claim, hence, it should be

allowed. This is too simplistic an approach. Rights do not
necessarily arise from a vacuum. Silence of the law can even
mean an implied denial of a right. Also, constitutional
litigations do not always involve a clear cut choice between
right and wrong. Sometimes, they involve a difficult choice
between right against right. In these situations, there is need
to balance the contending rights and primacy is given to the
right that will serve the interest of the nation at that
particular time. In such instances, the less compelling right
is subjected to soft restraint but without smothering its
essence. Proceeding from this premise of relativism of
rights, I venture the view that even assuming argu________________
17
Semmelman, Federal Courts, The Constitution and the Rule of Non-
Inquiry in International Extradition Proceedings, Cornell Law Rev., vol. 76,

No. 5, p. 1198 (July 1991).
224
224

endo respondents weak claim, still, the degree of denial of

private respondents rights to due process and to information
is too slight to warrant the interposition of judicial power. As
54
admitted in the ponencia itself, an extradition proceeding

is sui generis. It is, thus, futile to determine what it is. What
is certain is that it is not a criminal proceeding where there is
an accused who can claim the entire array of rights
guaranteed by the Bill of Rights. Let it be stressed that in an
extradition proceeding, there is no accused and the guilt or
innocence of the extraditee will not be passed upon by our
executive officials nor by the extradition judge. Hence,
constitutional rights that are only relevant to determine the
guilt or innocence of an accused cannot be invoked by an
extraditee. Indeed, an extradition proceeding is summary in
nature which is untrue of criminal proceedings. Even
the rules of evidence are different in an extradition
proceeding. Admission of evidence is less stringent, again
because the guilt of the extraditee is not under litigation. It
is not only the quality but even the quantum of evidence in
extradition proceeding is different. In a criminal case, an
accused can only be convicted by proof beyond reasonable
doubt. In an extradition proceeding, an extraditee can be
ordered extradited upon showing of the existence of a prima
facie case. If more need be said, the nature of an extradition
decision is different from a judicial decision whose finality
cannot be changed by executive fiat. Our courts may hold an
individual extraditable but the ultimate decision to extradite
the individual lies in the hands of the Executive. Section 3,
Article 3 of the RP-US Extradition Treaty specifically
provides that extradition shall not be granted if the
executive authority of the Requested State determines that
the request was politically motivated, or that
18
________________
18
Section 9, PD No. 1069.
19
Ibid.
20
Section 2, Rule 133, Revised Rules of Court.
21
Section 10, P.D. No. 1069.
22
Referring to the Regional Trial Courts and the Court of Appeals whose
decisions are deemed final and executory. See Section 12, P.D. No. 1069.
225
VOL. 322, JANUARY 18, 2000
225
19
20
21
22

the offense is a military offense which is not punishable
under non-military penal legislation. In the United States,
the Secretary of State exercises this ultimate power and is
conceded considerable discretion. He balances the equities of
the case and the demands of the nations foreign
relations. In sum, he is not straitjacketed by strict legal
considerations like an ordinary court.
23
The type of issue litigated in extradition proceedings which

does not touch on the guilt or innocence of the extraditee,
the limited
nature
of
the
extradition
proceeding, the availability of adequate remedies in favor of
55
the extraditee, and the traditional leeway given to the

Executive in the conduct of foreign affairs have compelled
courts to put a high thresholdbefore considering claims of
individuals that enforcement of an extradition treaty will
violate their constitutional rights. Exemplifying such
approach is the Supreme Court of Canada which has adopted
ahighly deferential standard that emphasizes international
comity and the executives experience in international
matters. It continues to deny Canadas charter protection
to extraditees unless the violation can be considered shocking
to the conscience.
24
Spencer, op cit., citing decided cases.
226
226

24
In the case at bar and with due respect, the ponencia

inflates with too much significance thethreat to liberty of the
private respondent to prop up its thesis that his
constitutional rights to due process and access to information
must immediately be vindicated. Allegedly, respondent
Jimenez stands in danger of provisional arrest, hence, the
need for him to be immediately furnished copies of
documents
accompanying
the
request
for
his
extradition.Respondents fear of provisional arrest is not real.
It is a self-imagined fear for the realities on the ground show
that the United States authorities have not manifested any
desire to request for his arrest. On the contrary, they filed the
extradition request through the regular channel and, even
with the pendency of the case at bar, they
________________
23
Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-
have not moved for respondents arrest on the ground of

probable delay in the proceedings. To be sure, the issue of
whether respondent Jimenez will be provisionally arrested is
now moot. Under Section 1 of Article 9 of the RP-US
Extradition Treaty, in relation to Section 20(a) of PD No.
1069, the general principle is enunciated that a request for
provisional arrest must be made pending receipt of the
request for extradition. By filing the request for extradition,
the US authorities have implicitly decided not to move for
respondents provisional arrest. But more important,
a request for respondents arrest does not mean he will be the
victim of an arbitrary arrest. He will be given due process
before he can be arrested. Article 9 of the treaty provides:
PROVISIONAL ARREST
1. 1.In case of urgency, a Contracting Party may request the
provisional arrest of the person sought pending
presentation of the request for extradition. A request for
provisional arrest may be transmitted through the
diplomatic channel or directly between the Philippine
1329.
56
Department of Justice and the United States Department

of Justice.
2. 2.The application for provisional arrest shall contain:
1. a)a description of the person sought;
1. quested State has not received the formal request for
2. b)the location of the person sought, if known;

3. c)a brief statement of the facts of the case, including, if
possible, the time and location of the offense;
4. d)a description of the laws violated;
5. e)a statement of the existence of a warrant of arrest or
finding of guilt or judgment of conviction against the
person sought; and
6. f)a statement that a request for extradition for the person
sought will follow.
1. 3.The Requesting State shall be notified without delay of
the disposition of its application and the reasons for any
denial.
2. 4.A person who is provisionally arrested may be discharged
from custody upon the expiration of sixty (60) days from
the date of arrest pursuant to this Treaty if the executive
authority of the Re227
VOL. 322, JANUARY 18, 2000
extradition and the supporting documents required in

Article 7.
In relation to the above, Section 20 of P.D. No. 1069 provides:

Sec. 20. Provisional Arrest(a) In case of urgency, the requesting
state may, pursuant to the relevant treaty or convention and while
the same remains in force, request for the provisional arrest of the
accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.
1. (b)A request for provisional arrest shall be sent to the
Director of the National Bureau of Investigation, Manila,
either through the diplomatic channels or direct by post or
telegraph.
2. (c)The Director of the National Bureau of Investigation or
any official acting on his behalf shall upon receipt of the
request immediately secure a warrant for the provisional
arrest of the accused from the presiding judge of the Court
of First Instance of the province or city having jurisdiction
of the place, who shall issue the warrant for the provisional
arrest of the accused. The Director of the National Bureau
of Investigation through the Secretary of Foreign Affairs
227
57
shall inform the requesting state of the result of its

request.
3. (d)If within a period of 20 days after the provisional arrest,
the Secretary of Foreign Affairs has not received the
request for extradition and the documents mentioned in
Section 4 of this Decree, the accused shall be released from
custody.
The due process protection of the private respondent against

arbitrary arrest is written in cyrillic letters in these two (2)
related provisions. It is self-evident under these provisions
that a request for provisional arrest does not mean it will be
granted ipso facto. The request must comply with certain
requirements. It must be based on an urgent factor. This is
subject to verification and evaluation by our executive
authorities. The request can be denied if not based on a real
exigency or if the supporting documents are insufficient. The
protection of the respondent against arbitrary provisional
arrest does not stop on the administrative level. For even if
the Director of the National Bureau of Investigation agrees
with the request for the provisional arrest of the respondent,
still
228
228

he has to apply for a judicial warrant from the presiding

judge of the Court of First Instance (now RTC) of the
province or city having jurisdiction of the place. x x x. It is
a judge who will issue a warrant for the provisional arrest of
the respondent. The judge has to comply with Section 2,
Article III of the Constitution which provides that no x x x
warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the x x
x persons or things to be seized. The message that leaps to
the eye is that compliance with this requirement precludes any
arbitrary arrest.
In light of all these considerations, I respectfully submit
that denying respondents constitutional claim to be
furnished all documents relating to the request for his
extradition by the US authorities during theirevaluation
stage will not subvert his right tofundamental fairness. It
should be stressed that this is not a case where the respondent
will not be given an opportunity to know the basis of the
request for his extradition. In truth, and contrary to the
impression of the majority, P.D. No. 1069 fixes the specific
timewhen he will be given the papers constituting the basis
for his extradition. The time is when he is summoned by the
extradition court and required to answer the petition for
extradition. Thus, Section 6 of P.D. No. 1069 provides:
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service
of Notices.(1) Immediately upon receipt of the petition, the
58
presiding judge of the court shall, as soon as practicable, summon

the accused to appear and to answer the petition on the day and
hour fixed in the order. He may issue a warrant for the immediate
arrest of the accused which may be served anywhere within the
Philippines if it appears to the presiding judge that the immediate
arrest and temporary detention of the accused will best serve the
ends of justice. Upon receipt of the answer within the time fixed,
the presiding judge shall hear the case or set another date for the
hearing thereof.
229
VOL. 322, JANUARY 18, 2000
229

(2) The order and notice as well as a copy of the warrant of arrest,
if issued, shall be promptly served each upon the accused and the
attorney having charge of the case.
Upon receipt of the summons and the petition, respondent is

free to foist all defenses available to him. Such an
opportunity does not deny him fairness which is the essence of
due process of law.
Thus, with due respect, I submit that the ponencia failed
to accord due importance to the international law aspect of an
extradition treaty as it unduly stressed its constitutional law
dimension. This goes against the familiar learning that in
balancing the clashing interests involved in extradition
treaty,national interest is more equal than the others. While

lately, humanitarian considerations are being factored in the
equation, still the concept of extradition as a national act is
the guiding idea. Requesting and granting extradition
remains a power and prerogative of the national government
of a State. The process still involves relations between
international personalities. Needless to state, a more
deferential treatment should be given to national interest than
to individual interest. Our national interest in extraditing
persons who have committed crimes in a foreign country are
succinctly expressed in the whereas clauses of P.D. No.
1069, viz.:
25
WHEREAS, the Constitution of the Philippines adopts the

generally accepted principles of international law as part of the
law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of
the state where it is committed but also of any other state to which
the criminal may have escaped, because it saps the foundation of
social life and is an outrage upon humanity at large, and it is in
the interest of civilized communities that crimes should not go
unpunished. x x x.
________________
25
Weston, Falk and Amato, International Law and World Order, 2nd ed.,
p. 630 (1990).
230
59
230

The increasing incidence of international and transnational

crimes, the development of new technologies of death, and
the speed and scale of improvement of communication are
factors which have virtually annihilated time and distance.
They make more compelling the vindication of our national
interest to insure that the punishment of criminals should
not be frustrated by the frontiers of territorial sovereignty.
This overriding national interest must be upheld as against
respondents weak constitutional claims which in no way
amount to denial of fundamental fairness.
At bottom, this case involves the respect that courts should
accord to the Executive that concluded the RP-US
Extradition Treaty in the conduct of our foreign affairs. As
early as 1800, the legendary John Marshall, then a
congressman, has opined that the power to extradite
pursuant to a treaty rests in the executive branch as part of
its power to conduct foreign affairs. Courts have validated
this forward-looking opinion in a catena of unbroken cases.
They defer to the judgment of the Executive on the
necessities of our foreign affairs and on its view of the
requirements of international comity. The deferential
attitude is dictated by the robust reality that of the three
great branches of our government, it is the Executive that is
26
most qualified to guide the ship of the state on the known and
unknown continents of foreign relations. It is also compelled
by considerations of the principle of separation of powers for
the Constitution has clearly allocated the power to conduct
our foreign affairs to the Executive. I respectfully submit that
the majority decision has weakened the Executive by allowing
nothing less than an unconstitutional headbutt on the power
of the Executive to conduct our foreign affairs. The majority
should be cautious in involving this Court in the conduct of
the nations foreign relations where the inviolable rule
dictated by necessity is that the nation should speak with one
voice. We should not overlook the reality that courts, by their
nature, are ill-equipped to fully comprehend the foreign
policy
________________
26
Semmelman, op cit., p. 1206.
231
VOL. 322, JANUARY 18, 2000
231

dimensions of a treaty, some of which are bidden in shadows
and silhouettes.
I vote to grant the petition.
60
DISSENTING OPINION
PANGANIBAN, J.:
With due respect, I dissent.
The main issue before us is whether Private Respondent
Mark B. Jimenez is entitled to the due process rights of
notice and hearing during the preliminary or evaluation
stage of the extradition proceeding against him.
Two Stages in Extradition
There are essentially two stages in extradition proceedings:
(1) the preliminary or evaluation stage, whereby the
executive authority of the requested state ascertains whether
the extradition request is supported by the documents and
information required under the Extradition Treaty; and (2)
the extradition hearing, whereby the petition for extradition
is heard before a court of justice, which determines whether
the accused should be extradited.
The instant petition refers only to the first stage. Private

respondent claims that he has a right to be notified and to be
heard at this early stage. However, even the ponencia admits
that neither the RP-US Extradition Treaty nor PD 1069 (the
Philippine Extradition Law) expressly requires the
Philippine government, upon receipt of the request for
extradition, to give copies thereof and its supporting
documents to the prospective extraditee, much less to give
him an opportunity to be heard prior to the filing of the
petition in court.
Notably, international extradition proceedings in the
United States do not include the grant by the executive
authority of notice and hearing to the prospective extraditee
at this initial stage. It is the judge or magistrate who is
authorized to issue a warrant of arrest and to hold a hearing
232
232

to consider the evidence submitted in support of the

extradition request. In contrast, in interstate rendition, the
governor must, upon demand, furnish the fugitive or his
attorney copies of the request and its accompanying
documents,
pursuant
to statutoryprovisions. In
the
Philippines, there is no similar statutory provision.
1
61
Evaluation Stage Essentially Ministerial
________________
The evaluation stage simply involves the ascertainment by

the foreign affairs secretary of whether the extradition
request is accompanied by the documents stated in
paragraphs 2 and 3, Article 7 of the Treaty, relating to the
identity and the probable location of the fugitive; the facts of
the offense and the procedural history of the case; provisions
of the law describing the essential elements of the offense
charged and the punishment therefor; its prescriptive period;
such evidence as would provide probable cause for the arrest
and the committal for trial of the fugitive; and copies of the
warrant or order of arrest and the charging document. The
foreign affairs secretary also sees to it that these
accompanying documents have been certified by the principal
diplomatic or consular officer of the Philippines in the United
States, and that they are in the English language or have
English translations. Pursuant to Article 3 of the Treaty, he
also determines whether the request is politically motivated,
and whether the offense charged is a military offense not
punishable under non-military penal legislation.
2
Upon a finding of the secretary of foreign affairs that the

extradition request and its supporting documents are
sufficient and complete in form and substance, he shall
deliver the same to the justice secretary, who shall
immediately designate and authorize an attorney in his office
to take charge of the case. The lawyer designated shall then
file a written peti-
35 CJS 14(1) Extradition 410. See also ponencia, p. 25.
See ponencia, pp. 11-12.
233
VOL. 322, JANUARY 18, 2000
233

tion with the proper regional trial court, with a prayer that
the court take the extradition request under consideration.
3
When the Right to Notice and Hearing Becomes Available

According to Private Respondent Jimenez, his right to due
process during the preliminary stage emanates from our
Constitution, particularly Section 1, Article III thereof, which
provides:
No person shall be deprived of life, liberty or property without due
process of law.
He claims that this right arises immediately, because of the

possibility that he may be provisionally arrested pursuant to
Article 9 of the RP-US Treaty, which reads:
In case of urgency, a Contracting Party may request the
provisional arrest of the person sought pending presentation of the
62
request for extradition. A request for provisional arrest may be

transmitted through the diplomatic channel or directly between
the Philippine Department of Justice and the United States
Department of Justice.
xxx
xxx
x x x
Justice Melos ponencia supports private respondents

contention. It states that there are two occasions wherein the
prospective extraditee may be deprived of liberty: (1) in case
of a provisional arrest pending the submission of the
extradition request and (2) his temporary arrest during the
pendency of the extradition petition in court. The second
instance is not in issue here, because no petition has yet been
filed in court.
4
However, the above-quoted Article 9 on provisional arrest

is not automatically operative at all times, and its
enforcement does not depend solely on the discretion of the
requested
________________
3
Ibid.; Section 5, pars. (1) & (2), PD 1069.
Ponencia, p. 18.
234
234

state. From the wordings of the provision itself, there are at
least three requisites: (1) there must be an urgency, and (2)
there is a corresponding request (3) which must be made
prior to the presentation of the request for extradition.
In the instant case, there appears to be no urgency
characterizing the nature of the extradition of private
respondent. Petitioner does not claim any such urgency.
There is no request from the United States for the provisional
arrest of Mark Jimenez either. And the secretary of justice
stated during the Oral Argument that he had no intention of
applying
for
the
provisional
arrest
of
private
respondent. Finally, the formal request for extradition has
already been made; therefore, provisional arrest is not likely,
as it should really come before the extradition request.
5
Mark Jimenez Not in Jeopardy of Arrest

Under the outlined facts of this case, there is no open door for
the application of Articie 9, contrary to the apprehension of
private respondent. In other words, there is no actual danger
that Jimenez will be provisionally arrested or deprived of his
liberty. There is as yet no threat that his rights would be
trampled upon, pending the filing in court of the petition for
his extradition. Hence, there is no substantial gain to be
achieved in requiring the foreign affairs (or justice) secretary
to notify and hear him during thepreliminary stage, which
63
basically involves only the exercise of the ministerial power of

checking the sufficiency of the documents attached to the
extradition request. It must be borne in mind that during the
preliminary
stage,
the
foreign
affairs
secretarys
determination of whether the offense charged is extraditable
or politically motivated is merely preliminary. The same
issue will be resolved by the
________________
5
TSN, p. 76.
See also TSN, p. 30.
235
VOL. 322, JANUARY 18, 2000
235

trial court. Moreover, it is also the power and the duty of the
court, not the executive authority, to determine whether
there is sufficient evidence to establish probable cause that
the extraditee committed the crimes charged. The sufficiency
of the evidence of criminality is to be determined based on
the laws of the requested state. Private Respondent Jimenez
will, therefore, definitely have his full opportunity before the
court, in case an extradition petition will indeed be filed, to
7
be heard on all issues including the sufficiency of the

documents supporting the extradition request.
10
Private respondent insists that the United States may still

request his provisional arrest at any time. That is purely
speculative. It is elementary that this Court does not declare
judgments or grant reliefs based on speculations, surmises or
conjectures.
In any event, even granting that the arrest of Jimenez is
sought at any time despite the assurance of the justice
secretary that no such measure will be undertaken, our local
laws and rules of procedure respecting the issuance of a
warrant of arrest will govern, there being no specific
provision under the Extradition Treaty by which such
warrant should issue. Therefore, Jimenez will be entitled to
all the rights accorded by the Constitution and the laws to
any person whose arrest is being sought.
The right of one state to demand from another the return
of an alleged fugitive from justice and the correlative duty to
surrender the fugitive to the demanding country exist only
when created by a treaty between the two countries.
International law does not require the voluntary surrender of
a fugitive to a foreign government, absent any treaty
stipulation
________________
7
5 (2) & (3) in rel. to 10, PD 1069. See also last par., p. 13 ofponencia.
64
18 USCS 3184, n 58 Criminal Procedure 456; 31A Am Jur 2d 109
Extradiction 828.
9
10
18 USCS 3184, n 64 Criminal Procedure 458.

See Wright v. Court of Appeals, 235 SCRA 341, August 15, 1994.
236
236

requiring it. When such a treaty does exist, as between the

Philippines and the United States, it must be presumed that
the contracting states perform their obligations under it
with uberrimae fidei, treaty obligations being essentially
characterized internationally by comity and mutual respect.
11
The Need for Respondent Jimenez to Face Charges in the US
the executive authority. The concrete charges that he has

allegedly committed certain offenses already exist. These
charges have been filed in the United States and are part of
public and official records there. Assuming the existence of
moral injury, the only means by which he can restore his
good reputation is to prove before the proper judicial
authorities in the US that the charges against him are
unfounded. Such restoration cannot be accomplished by
simply contending that the documents supporting the request
for his extradition are insufficient.
Conclusion
In the context of the factual milieu of private respondent,
there is really no threat of any deprivation of his liberty at
the present stage of the extradition process. Hence, the
constitutional right to due processparticularly the right to
be heardfinds no application. To grant private respondents
_______________
11
One final point. Private respondent also claims that from the
time the secretary of foreign affairs gave due course to the
request for his extradition, incalculable prejudice has been
brought upon him. And because of the moral injury caused,
he should be given the opportunity at the earliest possible
time to stop his extradition. I believe that any moral injury
suffered by private respondent had not been caused by the
mere processing of the extradition request. And it will not
cease merely by granting him the opportunity to be heard by
31A Am Jur 2d Extradition 14.
237
VOL. 322, JANUARY 18, 2000
237
65
request for copies of the extradition documents and for an

opportunity to comment thereon will constitute over-due
process and unnecessarily delay the proceedings.
WHEREFORE, I vote to grant the Petition.
Petition dismissed.
Note.An actual hearing is not always an indispensable
aspect of due processas long as a party was given the
opportunity to defend his interests in due course, he cannot
be said to have been denied due process of law, for this
opportunity to be heard is the very essence of due process.
(Lumiqued vs. Exevea, 282 SCRA 125 [1997])
o0o
G.R. No. 139465. October 17, 2000
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C.

LANTION, Presiding Judge, Regional Trial Court of Manila,
Branch 25, and MARK B. JIMENEZ, respondents.
Constitutional Law; Remedial Law;Extradition; Court holds
now that private respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process.
We now holdthat private respondent is bereft of the right to notice
and hearing during theevaluation stage of the extradition process.
x x x There is no provision in the RP-US Extradition Treaty and in
P.D. No. 1069 which gives an extraditee the right to demand from
the petitioner Secretary of Justice copies of the extradition request
66
from the US government and its supporting documents and to

comment thereonwhile the request is still undergoing evaluation.
We cannot write a provision in the treaty giving private respondent
that right where there is none. It is well-settled that a court
cannot alter, amend, or add to a treaty by the insertion of any
clause, small or great, or dispense with any of its conditions and
requirements or take away any qualification, or integral part of
any stipulation, upon any motion of equity, or general convenience,
or substantial justice.
Same; Same; Same; Extradition proceeding is not a criminal
proceeding which will call into operation all the rights of an
accused as guaranteed by the Bill of Rights.An extradition
proceeding is sui generis. It is not a criminal proceeding which will
call into operation all the rights of an accused as guaranteed by
the Bill of Rights. To begin with, the process of extradition does not
involve the determination of the guilt or innocence of an accused.
His guilt or innocence will be adjudged in the court of the state
where he will be extradited. Hence, as a rule, constitutional rights
that are only relevant to determine the guilt or innocence of an
accused cannot be invoked by an extraditee, especially by one
whose extradition papers are still undergoing evaluation.
Same; Same; Same; Differences
between
an
extradition
proceeding and a criminal proceeding.There are other
differences between an extradition proceeding and a criminal
proceeding. An extradition proceeding is summary in nature while
criminal proceedings involve a full-blown trial. In contradistinction
to a criminal proceeding, the rules of evidence in an
_______________
*
EN BANC.
378
3
78
SUPREME COURT
REPORTS ANNOTATED
extradition proceeding allow admission of evidence under less

stringent standards. In terms of the quantum of evidence to be
satisfied, a criminal case requires proof beyond reasonable doubt
for conviction while a fugitive may be ordered extradited upon
showing of the existence of a prima facie case. Finally, unlike in a
criminal case where judgment becomes executory upon being
rendered final, in an extradition proceeding, our courts may
adjudge an individual extraditable but the President has the final
discretion to extradite him.
Same; Same; Same; Private respondents plea to due process
collides with important state interests which cannot also be ignored
for they serve the interest of the greater majority.To be sure,
private respondents plea for due process deserves serious
consideration involving as it does his primordial right to
liberty. His plea to due process, however, collides with important
state interests which cannot also be ignored for they serve the
interest of the greater majority. The clash of rights demands a
delicate balancing of interests approach which is a fundamental
postulate of constitutional law. The approach requires that we
take conscious and detailed consideration of the interplay of
interests observable in a given situation or type of situation.
These interests usually consist in the exercise by an individual of
67
his basic freedoms on the one hand, and the governments

promotion of fundamental public interest or policy objectives on
the other.
Same; Same; Same; The time for the extraditee to know the
basis of the request for his extradition is merely moved to the filing
in court of the formal petition for extradition.We have explained
why an extraditee has no right to notice and hearing during the
evaluation stage of the extradition process. As aforesaid, P.D. No.
1069 which implements the RP-US Extradition Treaty affords an
extraditee sufficient opportunity to meet the evidence against
him once the petition is filed in court. The time for the extraditee to
know the basis of the request for his extradition is merely moved to
the filing in court of the formal petition for extradition. The
extraditees right to know is momentarily withheld during the
evaluation stage of the extradition process to accommodate the
more compelling interest of the State to prevent escape of potential
extraditees which can be precipitated by premature information of
the basis of the request for his extradition. No less compelling at
that stage of the extradition proceedings is the need to be more
deferential to the judgment of a co-equal branch of the government,
the Executive, which has been endowed by our Constitution with
greater power over matters involving our foreign relations.
MELO, J., Dissenting Opinion:

Constitutional Law; Remedial Law;Extradition; Petitioner is
well versed in the use of a hold departure order which could easily
lay his fear of private respondents flight to rest.And as regards
the apprehension of flight, petitioner is well versed in the use of a
hold departure order which could easily lay his fear of private
respondents flight to rest. In accordance with Department
Circular No. 17 issued on March 19, 1998 by then Secretary of
Justice Silvestre H. Bello III, a hold departure order (HDO) may be
issued by the Secretary of Justice upon the request of the Head of
a Department of the Government; the head of a constitutional body
or a commission or agency performing quasi-judicial functions; the
Chief Justice of the Supreme Court for the Judiciary; or by the
President of the Senate or the Speaker of the House of
Representatives for the legislative body when the interested party
is the Government or any of its agencies or instrumentalities, in
the interest of national security, public safety or public health, as
may be provided by law (Paragraph 2 [d], Department Circular
No. 17 [Prescribing Rules and Regulations Governing the Issuance
of Hold Departure Orders]). This provision can easily be utilized by
petitioner to prevent private respondents flight.
YNARES-SANTIAGO, J., Dissenting Opinion:
379
VOL. 343, OCTOBER 17, 2000

379
Constitutional Law; Remedial Law;Extradition; To grant the

respondent his right to know will not, in any significant way,
weaken or frustrate compliance with treaty objectives.After going
over the grounds given by the Government in support of the motion
for reconsideration, I regret that I cannot go along with the new
ruling of the Courts recent majority. I am convinced that there is
greater reason to strike the balance in favor of a solitary
beleaguered individual against the exertion of overwhelming
68
Government power by beth the Philippines and the United

States. To grant the respondent his right to know will not, in any
significant way, weaken or frustrate compliance with treaty
objectives. But it will result in jurisprudence which reasserts
national dignity and gives meaningful protection to the rights of
any citizen who is presumed innocent until proven guilty.
justice system. I do not want to sound unduly jingoistic but in

certain Western countries, especially those using the jury system,
a second-class citizen or a colored non-citizen may not always get
equal justice inspite of protestations to the contrary. The
prospective extraditee, therefore, deserves every lawful
consideration which his poor third-world country can give him.
Same; Same; Same; No provision in the Treaty mandates that

an extraditee should be kept in the dark about the charges against
him until he is brought to trial.There is no provision in the
Treaty which mandates that an extraditee should be kept in the
dark about the charges against him until he is brought to trial. The
Treaty deals only with the trial proper. It cannot possibly cover
everything. Our law and jurisprudence are
URGENT MOTION FOR RECONSIDERATION of a decision

of the Supreme Court.
The facts are stated in the resolution of the Court.
The Solicitor General for petitioner.
Estelito P. Mendoza for private respondent.
380
RESOLUTION
3
80
SUPREME COURT
REPORTS ANNOTATED
not superseded by the mere absence of a specific provision in a

treaty. What is not prohibited should be allowed.
Same; Same; Same; A proposed extraditee should not be
denied a reasonable opportunity to prepare for trial.A proposed
extraditee should not be denied a reasonable opportunity to
prepare for trial. In an extradition trial, there may be reasons for
the exercise of special care and caution. It is not a casual
occurrence to give up your citizen to another countrys criminal
PUNO, J.:
On January 18, 2000, by a vote of 9-6, we dismissed the
petition at bar and ordered the petitioner to furnish private
respondent copies of the extradition request and its
supporting papers and to grant him a reasonable period
within which to file his comment with supporting evidence.
1
On February 3, 2000, the petitioner timely filed an Urgent

Motion for Reconsideration. He assails the decision on the
following grounds:
_______________
69
Rollo, pp. 442-443; Decision, Secretary of Justice v. Hon. Ralph C.
Lantion and Mark B. Jimenez, G.R. No. 139465, January 18, 2000, pp. 3940, 322 SCRA 160.
381
VOL. 343, OCTOBER 17, 2000
381

The majority decision failed to appreciate the following facts and
points of substance and of value which, if considered, would alter
the result of the case, thus:
6. VI.The instances cited in the assailed majority decision

when the twin rights of notice and hearing may be
dispensed with in this case results in a non
sequiturconclusion.
7. VII.Jimenez is not placed in imminent danger of arrest by
the Executive Branch necessitating notice and hearing.
8. VIII.By instituting a proceeding not contemplated by PD
No. 1069, the Supreme Court has encroached upon the
constitutional boundaries separating it from the other two
co-equal branches of government.
9. IX.Bail is not a matter of right in proceedings leading to
extradition or in extradition proceedings.
2
1. I.There is a substantial difference between an evaluation

process antecedent to the filing of an extradition petition
in court and a preliminary investigation.
On March 28, 2000, a 58-page Comment was filed by the

private respondent Mark B. Jimenez, opposing petitioners
Urgent Motion for Reconsideration.
2. II.Absence of notice and hearing during the evaluation

process will not result in a denial of fundamental fairness.
On April 5, 2000, petitioner filed an Urgent Motion to

Allow Continuation and Maintenance of Action and Filing of
Reply. Thereafter, petitioner filed on June 7, 2000 a
Manifestation with the attached Note 327/00 from the
Embassy of Canada and Note No. 34 from the Security
Bureau of the Hongkong SAR Government Secretariat. On
August 15, 2000, private respondent filed a Manifestation
and Motion for Leave to File Rejoinder in the event that
petitioners April 5, 2000 Motion would be granted. Private
3. III.In the evaluation process, instituting a notice and

hearing requirement satisfies no higher objective.
4. IV.The deliberate omission of the notice and hearing
requirement in the Philippine Extradition Law is intended
to prevent flight.
5. V.There is a need to balance the interest between the
discretionary powers of government and the rights of an
individual.
_______________
70
Rollo, p. 495; Urgent Motion for Reconsideration, p. 4.
382
38
2

ANNOTATED
respondent also filed on August 18, 2000, a Motion to

Expunge from the records petitioners June 7, 2000
Manifestation with its attached note verbales. Except for the
Motion to Allow Continuation and Maintenance of Action, the
Court denies these pending motions and hereby resolves
petitioners Urgent Motion for Reconsideration.
The jugular issue is whether or not the private respondent
is entitled to the due process right to notice and hearing
during the evaluation stage of the extradition process.
We now hold that private respondent is bereft of the right
to notice and hearing during theevaluation stage of the
extradition process.
First. P.D. No. 1069 which implements the RP-US
Extradition Treaty provides the time when an extraditee
shall be furnished a copy of the petition for extradition as
well as its supporting papers, i.e., after the filing of the
petition for extradition in the extradition court,viz.:
3
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service

hour fixed in the order... Upon receipt of the answer, or should the
accused after having received the summons fail to answer within
the time fixed, the presiding judge shall hear the case or set
another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of
arrest, if issued, shall be promptly served each upon the accused
and the attorney having charge of the case.
It is of judicial notice that the summons includes the petition

for extradition which will be answered by the extraditee.
There is no provision in the RP-US Extradition Treaty and
in P.D. No. 1069 which gives an extraditee the right to
demand from the petitioner Secretary of Justice copies of the
extradition request
_______________
3
Prescribing the Procedure for the Extradition of Persons Who Have
Committed Crimes in a Foreign Country signed into law on January 13,

1977.
383
VOL. 343, OCTOBER 17, 2000
383
71

from the US government and its supporting documents and
to comment thereon while the request is still undergoing
evaluation. We cannot write a provision in the treaty giving
private respondent that right where there is none. It is wellsettled that a court cannot alter, amend, or add to a treaty
by the insertion ofany clause, small or great, or dispense with
any of its conditions and requirements or take away any
qualification, or integral part of any stipulation, upon any
motion of equity, or general convenience, or substantial
justice.
4
Second. All treaties, including the RP-US Extradition

Treaty, should beinterpreted in light of their intent.Nothing
less than the Vienna Convention on the Law of Treaties to
which the Philippines is a signatory provides that a treaty
shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in
their context and in light of its object and purpose. (emphasis
supplied) The preambular paragraphs of P.D. No. 1069 define
its intent, viz.:
WHEREAS, the suppression of crimeis the concern not only of

the state where it is committed but also of any other state to which
the criminal may have escaped, because it saps the foundation of
social life and is an outrage upon humanity at large, and it is in
the interest of civilized communities that crimes should not go
unpunished;
WHEREAS, in recognition of this principle the Philippines
recently concluded an extradition treaty with the Republic of
Indonesia, and intends to conclude similar treaties with other
interested countries; x x x. (emphasis supplied)
It cannot be gainsaid that today, countries like the

Philippines forge extradition treaties to arrest the dramatic
rise of interna_______________
4
Amistad, 10 L. Ed. 826 (1841), citing The Amiable Isabella, 6 Wheat. 1.

5
WHEREAS, under the Constitution[,] the Philippines adopts the

generally accepted principles of international law as part of the
law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations;
Note, The United States v. The libelants and Claimants of the Schooner
Article 31(1), Vienna Convention on the Law of Treaties.
384
38
4

ANNOTATED
72
tional and transnational crimes like terrorism and drug

trafficking. Extradition treaties provide the assurance that
the punishment of these crimes will not be frustrated by the
frontiers of territorial sovereignty. Implicit in the treaties
should be the unbending commitment that the perpetrators
of these crimes will not be coddled by any signatory state.
It ought to follow that the RP-US Extradition Treaty calls
for an interpretation that will minimize if not prevent the
escape of extraditees from the long arm of the law and
expedite their trial. The submission of the private
respondent, that as a probable extraditee under the RP-US
Extradition Treaty he should be furnished a copy of the US
government request for his extradition and its supporting
documents even while they are still under evaluation by
petitioner Secretary of Justice, does not meet this
desideratum. The fear of the petitioner Secretary of Justice
that the demanded notice is equivalent to a notice to flee
must be deeply rooted on the experience of the executive
branch of our government. As it comes from the branch of our
government in charge of the faithful execution of our laws, it
deserves the careful consideration of this Court. In addition,
it cannot be gainsaid that private respondents demand
foradvance notice can delay the summary process of executive
evaluation of the extradition request and its accompanying
papers. The foresight of Justice Oliver Wendell Holmes did
not miss this danger. In 1911, he held:
It is common in extradition cases to attempt to bring to bear all
the factitious niceties of a criminal trial at common law. But it is a
waste of time . . . if there is presented, even in somewhat

untechnical form according to our ideas, such reasonable ground to
suppose him guilty as to make it proper that he should be
tried, good faith to the demanding government requires his
surrender. (emphasis supplied)
6
_______________
6
Glucksman v. Henkel, 221 U.S. 508, 511 (1911), citing Grin v. Shine, 187
US 181, 184, 47 L. Ed. 130, 133, 23 S. Ct. Rep. 98, 12 Am. Crim. Rep. 366.
See Pierce v. Creecy, 210 U.S. 387, 405, 52 L. Ed. 1113, 1122, 28 S. Ct. 714.
385
VOL. 343, OCTOBER 17, 2000
385

We erode no right of an extraditee when we do not allow time
to stand still on his prosecution. Justice is best served when
done without delay.
Third. An equally compelling factor to consider is
theunderstanding of the partiesthemselves to the RP-US
Extradition Treaty as well as the general interpretation of the
issue in question by other countries with similar treaties with
the Philippines. The rule is recognized that while courts have
the power to interpret treaties, the meaning given them by
the departments of government particularly charged with
their negotiation and enforcement is accorded great
73
weight. The reason for the rule is laid down in Santos III v.
Northwest Orient Airlines, et al., where we stressed that a
treaty is a joint executive-legislative act which enjoys the
presumption that it was first carefully studied and
determined to be constitutional before it was adopted and
given the force of law in the country.
Philippines signed by James K. Robinson, Asst. Attorney General and Bruce
Our executive department of government, thru the

Department of Foreign Affairs (DFA) and the Department of
Justice (DOJ), has steadfastly maintained that the RP-US
Extradition Treaty and P.D. No. 1069 do not grant the
private respondent a right to notice and hearing during the
evaluation
stage
of
an
extradition
process. This
understanding of the treaty is shared by the US government,
the other party to the treaty. This interpretation by the two
governments cannot be given scant significance. It will be
presumptu-
38
6
10
_______________
C. Swartz, Deputy Asst. Attorney General, Criminal Division, US

Department of Justice and Sara Criscitelli, Asst. Director, Office of
International Affairs, Criminal Division, Washington, D.C.
386

ANNOTATED
ous for the Court to assume that both governments did not
understand the terms of the treaty they concluded.
Yet, this is not all. Other countries with similar extradition
treaties with the Philippines have expressed the same
interpretation adopted by the Philippine and US governments.
Canadian and Hongkong authorities, thru appropriate note
verbales communicated to our Department of Foreign Affairs,
stated in unequivocal language that it is not an international
practice to afford a potential extraditee with a copy of the
extradition papers during the evaluation stage of the
extradition process. We cannot disregard such a convergence
of views unless it is manifestly erroneous.
11
Kolovrat v. Oregon, 366 US 187, 192 (1961); Factor v. Laubenheimer, 290
U.S. 276, 295 (1933), citing Nielsen v. Johnson, 279 U.S. 52, 73 L. Ed. 610, 49
S. Ct. 223; Charlton v. Kelly, 229 U.S. 447, 468, 57 L. Ed. 1274, 1283, 33 S.
Ct. 945, 46 L.R.A. (N.S.) 397.
8
210 SCRA 256, 261 (1992).
Rollo, p. 399.
10
See Original Records, pp. 467-482, Annex B of petitioners Urgent
Motion for Reconsideration entitled Observations of the United States In

Support of the Urgent Motion for Reconsideration by the Republic of the
12
Fourth. Private respondent, however, peddles the postulate

that he must be afforded the right to notice and hearing as
required by our Constitution. He buttresses his position by
74
likening an extradition proceeding to a criminal proceeding

and the evaluation stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui
generis.It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the
Bill of Rights. To begin with, the process of extradition does
not involve the determination of the guilt or innocence of an
accused. His guilt or innocence will be adjudged in the court
of the state where he will be extradited. Hence, as a rule,
constitutional rights that are only relevant to determine the
guilt or innocence of an accused cannot be invoked by an
extraditee especially by one whose extradition papers are still
undergoing evaluation. As held by the US Supreme Court
in United States v. Galanis:
13
14
_______________
11
See Original Records, pp. 506-507, Note 327/00 dated March 10, 2000
from the Embassy of Canada.

12
See Original Records, p. 509, Note No. (34) in SBCR 1/27 16/80 Pt. 27
dated March 22, 2000 from the Security Bureau of the Hongkong SAR
Government Secretariat.
13
Defensor-Santiago, Procedural Aspects of the Political Offence Doctrine,
51 Philippine Law Journal 238, p. 258 (1976).

14
Elliot, No Due Process Right to a Speedy Extradition, Martin v. Warden,
Atlanta Pen., 993 F.2d 824 (11th Cir. 1993), 18 Suffolk Transna-
VOL. 343, OCTOBER 17, 2000
387

An extradition proceeding is not a criminal prosecution, and the
constitutional safeguards that accompany a criminal trial in this
country do not shield an accused from extradition pursuant to a
valid treaty.
15
There are other differences between an extradition proceeding

and a criminal proceeding. An extradition proceeding is
summary in nature while criminal proceedings involve a fullblown trial. In contradistinction to a criminal proceeding,
the rules of evidence in an extradition proceeding allow
admission of evidence under less stringent standards. In
terms of the quantum of evidence to be satisfied, a criminal
case requires proof beyond reasonable doubt for
conviction while a fugitive may be ordered extradited upon
showing of the existence of a prima facie case. Finally, unlike
in a criminal case where judgment becomes executory upon
being rendered final, in an extradition proceeding, our courts
may adjudge an individual extraditable but the President has
the final discretion to extradite him. The United States
adheres to a similar practice whereby the Secretary of State
exercises wide discretion in balancing the equities of the case
and the demands of the nations foreign relations before
making the ultimate decision to extradite.
16
17
18
19
20
21
387
75
As an extradition proceeding is not criminal in character

and the evaluation stage in an extradition proceeding is not
akin to a preliminary investigation, the due process
safeguards in the latter do not necessarily apply to the former.
This we hold for the procedural due process required by a
given set of circumstances must begin tional Law Review
347, 353 (1995), citing Jhirad v. Ferrandina, 536 F.2d 478,
482 (2d Cir.).
ANNOTATED
with a determination of the precisenature of the government

function involved as well as the private interest that has been
affected by governmental action. The concept of due process
is flexible for not all situations calling for procedural
safeguards call for the same kind of procedure.
22
_______________
23
15
Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending
Greater Constitutional Procedural Protections To
Fugitives Fighting
Extradition from the United States, 19 Michigan Journal of International

Law 729, 741 (1998), citing United States v. Galanis, 429 F. Supp. 1215 (D.
Conn. 1977).
Fifth. Private respondent would also impress upon the

Court the urgency of his right to notice and hearing
considering the alleged threat to his liberty which may be
more priceless than life. The supposed threat to private
respondents liberty is perceived to come from several
provisions of the RP-US Extradition Treaty and P.D. No.
1069 which allow provisional arrest and temporary detention.
24
16
17
Ibid.
18
Section 2, Rule 133, Revised Rules of Court.
19
We first deal with provisional arrest. The RP-US

Extradition Treaty provides as follows:
20
See Article III of the RP-US Extradition Treaty.
PROVISIONAL ARREST
21
Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-
1329.
388
38
1. 1.In case of urgency, a Contracting Party may request the

provisional arrest of the person sought pending
presentation of the request for extradition. A request for
provisional arrest may be transmitted through the
diplomatic channel or directly between the Philippine

76
Department of Justice and the United States Department

of Justice.
2. 2.The application for provisional arrest shall contain:
VOL. 343, OCTOBER 17, 2000
389
1. a)a description of the person sought;

2. b)the location of the person sought, if known;
3. c)a brief statement of the facts of the case, including, if
possible, the time and location of the offense;
4. d)a description of the laws violated;
5. e)a state ment of the existence of a warrant of arrest or
finding of guilt or judgment of conviction against the
person sought; and
6. f)a statement that a request for extradition for the person
sought will follow.
_______________
22
Morrisey v. Brewer, 408 U.S. 471, 481 (1972), citing Cafeteria & Restaurant
Workers Union v. McElroy, 367 U.S. 886, 895 (1961), 6 L. Ed. 2d 1230, 1236, 81 S.
Ct. 1743 (1961).
23
Morissey v. Brewer, supra.
24
Comment on Petitioners Urgent Motion for Reconsideration, p. 37.
389
1. 3.The Requesting State shall be notified without delay of

the disposition of its application and the reasons for any
denial.
2. 4.A person who is provisionally arrested may be discharged
from custody upon the expiration of sixty (60) days from
the date of arrest pursuant to this Treaty if the executive
authority of the Requested State has not received the
formal request for extradition and the supporting
documents required in Article 7. (emphasis supplied)
In relation to the above, Section 20 of P.D. No. 1069 provides:

Sec. 20. Provisional Arrest.(a) In case of urgency, the requesting
state may, pursuant to the relevant treaty or convention and while
the same remains in force, request for the provisional arrest of the
accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.
1. (b)A request for provisional arrest shall be sent to the
Director of the National Bureau of Investigation, Manila,
either through the diplomatic channels or direct by post or
telegraph.
2. (c)The Director of the National Bureau of Investigation or
any official acting on his behalf shall upon receipt of the
request immediately secure a warrant for the provisional
77
arrest of the accused from the presiding judge of the Court

of First Instance of the province or city having jurisdiction
of the place, who shall issue the warrant for the
provisional arrest of the accused. The Director of the
National Bureau of Investigation through the Secretary of
Foreign Affairs shall inform the requesting state of the
result of its request.
3. (d)If within a period of 20 days after the provisional arrest
the Secretary of Foreign Affairs has not received the
request for extradition and the documents mentioned in
Section 4 of this Decree, the accused shall be released from
custody. (emphasis supplied)
Both the RP-US Extradition Treaty and P.D. No. 1069 clearly
provide that private respondent may be provisionally arrested
only pending receipt of the request for extradition.Our DFA
has long received the extradition request from the United
States and has turned it over to the DOJ. It is undisputed
that until today, the United States has not requested for
private respondents provisional arrest. Therefore, the threat
to private respondents liberty has passed. It is more
imagined than real.
390
39
0

ANNOTATED
Nor can the threat to private respondents liberty come from

Section 6 of P.D. No. 1069, which provides:
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service
hour fixed in the order. [H]e may issue a warrant for the immediate
arrest of the accused which may be served anywhere within the
Philippines if it appears to the presiding judge that the immediate
arrest and temporary detention of the accused will best serve the
ends of justice . . .
(2) The order and notice as well as a copy of the warrant of
arrest, if issued, shall be promptly served each upon the accused
and the attorney having charge of the case. (emphasis supplied)
It is evident from the above provision that a warrant of arrest

for the temporary detention of the accused pending the
extradition hearing may only be issued by the presiding judge
of the extradition court upon filing of the petition for
extradition. As the extradition process is still in the
evaluation stage of pertinent documents and there is no
certainty that a petition for extradition will be filed in the
appropriate extradition court, the threat to private
respondents liberty is merely hypothetical.
Sixth. To be sure, private respondents plea for due process
deserves serious consideration involving as it does his
primordial right to liberty. His plea to due process, however,
collides with important state interests which cannot also be
78
ignored for they serve the interest of the greater majority.The

clash of rights demands a delicate balancing of interests
approach which is a fundamental postulate of constitutional
law. The approach requires that we take conscious and
detailed consideration of the interplay of interests observable
in a given situation or type of situation. These interests
usually consist in the exercise by an individual of his
Section 1, Article III of the Constitution, which provides that

No person shall be deprived of life, liberty, or property
without due process of law . . . Without a bubble of doubt,
procedural due process of law lies at the foundation of a
civilized society which accords paramount importance to
justice and fairness. It has to be accorded the weight it
deserves.
_______________
This brings us to the other end of the balancing pole.

Petitioner avers that the Court should give more weight to
our national commitment under the RP-US Extradition
Treaty to expedite the extradition to the United States of
persons charged with violation of some of its laws. Petitioner
also emphasizes the need to defer to the judgment of the
Executive on matters relating to foreign affairs in order not
to weaken if not violate the principle of separation of powers.
25
26
25
Malayan Insurance Co. v. Smith, Bell & Co. (Phil.), Inc., et al., 101
SCRA 61 (1980), citing Republic v. Purisima, 78 SCRA 470(1977).

26
Zaldivar v. Sandiganbayan, 170 SCRA 1, 9 (1989), citing Lagunzad v.
Vda. de Gonzales,92 SCRA 476 (1979), citing Separate Opinion of the late
Chief Justice Castro in Gonzales v. Commission on Elections, 27 SCRA 835,
p. 899 (1969).
391
VOL. 343, OCTOBER 17, 2000
391

basic freedoms on the one hand, and the governments
promotion of fundamental public interest or policy objectives
on the other.
27
In the case at bar, on one end of the balancing pole is the

private respondents claim to due process predicated on
Considering that in the case at bar, the extradition

proceeding is only at its evaluation stage, the nature of the
right being claimed by the private respondent is nebulous and
the degree of prejudice he will allegedly suffer is weak, we
accord greater weight to the interests espoused by the
government thru the petitioner Secretary of Justice. InAngara
v. Electoral Commission, we held that the Constitution has
blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial
departments of the government. Under our constitutional
scheme, executive power is vested in the President of the
Philippines. Executive power includes, among others, the
power to contract or guarantee foreign loans and the power to
28
29
79
enter into treaties or international agreements. The task of

safeguarding that these treaties are duly honored devolves
upon the executive department
30
_______________
27
Bio Umpar Adiong v. Commission on Elections, 207 SCRA 712, 716
(1992).
28
63 Phil. 139, 157 (1936).
29
Section 1, Article VII, 1987 Constitution.
30
Id., sections 20-21.
392
39
2

ANNOTATED
which has the competence and authority to so act in the

international arena. It is traditionally held that the
President has power and even supremacy over the countrys
foreign relations. The executive department is aptly accorded
deference on matters of foreign relations considering the
Presidents most comprehensive and most confidential
information about the international scene of which he is
regularly briefed by our diplomatic and consular officials. His
31
32
access to ultra-sensitive military intelligence data is also

unlimited. The deference we give to the executive
department is dictated by the principle of separation of
powers.This principle is one of the cornerstones of our
democratic government. It cannot be eroded without
endangering our government.
33
The Philippines also has a national interest to help in

suppressing crimes and one way to do it is to facilitate the
extradition of persons covered by treaties duly entered by our
government. More and more, crimes are becoming the
concern of one world. Laws involving crimes and crime
prevention are undergoing universalization. One manifest
purpose of this trend towards globalization is to deny easy
refuge to a criminal whose activities threaten the peace and
progress of civilized countries. It is to the great interest of
the Philippines to be part of this irreversible movement in
light of its vulnerability to crimes, especially transnational
crimes.
In tilting the balance in favor of the interests of the State,
the Court stresses that it is not ruling that the private
respondent has no right to due process at all throughout the
length and breadth of the extrajudicial proceedings.
Procedural due process requires a determination of what
process is due, when it is due, and the degree of what is due.
Stated otherwise, a prior determination should be made as to
whether procedural protections are at all due and when they
are due, which in turn depends on the extent to which an
80
_______________
31
Department
of
Foreign
Affairs
v.
National
Labor
Relations
Commission, 262 SCRA 39, 48 (1996), citing International Catholic Migration

Commission v. Calleja, 190 SCRA 130 (1990).
32
Marcos
v.
Manglapus, 177
SCRA
668(1989).
See also Salazar
v.
Achacoso, 183 SCRA 145 (1990).

33
U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L.
Ed. 255 (1936).

393
VOL. 343, OCTOBER 17, 2000
393

individual will be condemned to suffer grievous loss. We
have explained why an extraditee has no right to notice and
process. As aforesaid, P.D. No. 1069 which implements the
RP-US Extradition Treaty affords an extraditee sufficient
opportunity to meet the evidence against him once the
petition is filed in court. The timefor the extraditee to know
the basis of the request for his extradition is merely moved to
the filing in court of the formal petition for extradition. The
extraditees right to know ismomentarily withheld during the
evaluation stage of the extradition process to accommodate
the more compelling interest of the State to prevent escape of
34
potential extraditees which can be precipitated by premature

information of the basis of the request for his extradition. No
less compelling at that stage of the extradition proceedings is
the need to be more deferential to the judgment of a co-equal
branch of the government, the Executive, which has been
endowed by our Constitution with greater power over matters
involving our foreign relations. Needless to state, this balance
of interests is not a static but a moving balance which can be
adjusted as the extradition process moves from the
administrative stage to the judicial stage and to the execution
stage depending on factors that will come into play. In sum,
we rule that thetemporary hold on private respondents
privilege of notice and hearing is a soft restraint on his right
to due process which will not deprive him of fundamental
fairness should he decide to resist the request for his
extradition to the United States.There is no denial of due
process as long as fundamental fairness is assured a party.
We end where we began. A myopic interpretation of the
due process clause would not suffice to resolve the conflicting
rights in the case at bar. With the global village shrinking at
a rapid pace, propelled as it is by technological leaps in
transportation and communication, we need to push further
back our horizons and work with the rest of the civilized
nations and move closer to the univer_______________
34
Morrisey v. Brewer, supra note 22, p. 481, citing Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123, 168, 95 L. Ed. 817, 852, 71 S.
81
Ct. 624 (1951) (Frankfurter, J., Concurring), quoted inGoldberg v. Kelly, 397
U.S. 254, 263, 25 L. Ed. 2d 287, 296, 90 S. Ct. 1011 (1970).
Bellosillo and Kapunan, JJ.,We

of JJ. Melo and Ynares-Santiago.
394
39
4
join
the
Dissent
Melo, J., Please see dissent.

ANNOTATED
sal goals of peace, equality, justice, freedom, cooperation and

amity with all nations. In the end, it is the individual who
will reap the harvest of peace and prosperity from these
efforts.
Vitug, J., I join in the dissent and reiterate my

separate opinion in the original ponencia.
Panganiban, J., For the reasons stated in my opinion
prom, on Jan. 18, 2000, I concur that Respondent Jimenez is
not entitled to notice and hearing during the preliminary
stage of extradition.
35
WHEREFORE, the Urgent Motion for Reconsideration is

GRANTED. The Decision in the case at bar promulgated on
January 18, 2000 is REVERSED. The assailed Order issued
by the public respondent judge on August 9, 1999 is SET
ASIDE. The temporary restraining order issued by this Court
on August 17, 1999 is made PERMANENT. The Regional
Trial Court of Manila, Branch 25 is enjoined from conducting
further proceedings in Civil Case No. 99-94684.
SO ORDERED.
Davide,
Jr. (C.J.), Mendoza,Purisima, Pardo, Gonzaga-Reyes andDe
Leon, Jr., JJ., concur.
Quisumbing, J., In the result.

Buena, J., I join in the dissent of Justice Consuelo Y.
Santiago.
Ynares-Santiago, J., Seeseparate dissent.
_______________
35
Section 2, Article II, 1987 Constitution.
395
VOL. 343, OCTOBER 17, 2000
395
82
DISSENTING OPINION
MELO, J.:
With all due respect, I dissent.
In his motion for reconsideration, petitioner posits that: (1)
the evaluation process antecedent to the filing of an
extradition petition in court is substantially different from a
preliminary investigation; the absence of notice and hearing
during such process will not result in a denial of fundamental
fairness and satisfies no higher objective; instituting another
layer of notice and hearing, even when not contemplated in
the treaty and in the implementing law would result in
excessive due process; (2) the deliberate omission of the
notice and hearing requirement in the Philippine Extradition
Law is intended to prevent flight; (3) there is need to balance
the interests between the discretionary powers of government
and the rights of an individual; (4) the instances cited in the
majority opinion when the twin rights of notice and hearing
may
be
dispensed
with
will
result
in
a non
sequitur conclusion; (5) by instituting a proceeding not
contemplated by Presidential Decree No. 1069, the Court has
encroached upon the constitutional boundaries separating it
from the other two co-equal branches of government; and
lastly, (6) bail is not a matter of right in proceedings leading
to extradition or in extradition proceedings.
It need not be said that the issues of the case at bar touch
on the very bonds of a democratic society which value the
power of onethe single individual. Basic principles on

democracy are underpinned on the individual. Popular
control is hinged on the value that we give to people as selfdetermining agents who should have a say on issues that
affect their lives, particularly on making life-plans. Political
equality is founded on the assumption that everyone (or at
least every adult) has an equal capacity for selfdetermination, and, therefore, an equal right to influence
collective decisions, and to have their interests considered
when these decisions are made (Saward, M., Democratic
Theory and Indices of Democratization; in Defining and
Measuring Democracy, David Beetham, ed., Human Rights
Centre, University of Essex, Colchester/Charter 88 Trust,
London, 1993, p. 7).
396
39
6

ANNOTATED
Affording due process to a single citizen is not contrary to the

republican and democratic roots of our State, and is in fact
true to its nature. Although there can be excessive layers of
appeals and remedies, no due process rights may be deemed
excessive. It is either the rights are given or not. The case at
bar calls for the grant. Be it remembered that this is the first
83
time that respondent Jimenez has come to court to raise the

issues herein.
I am going to consider petitioners arguments point by
point.
Petitioner argues that the Court should have considered
that preliminary investigation and the evaluation are similar
in the sense that the right to preliminary investigation and
the right to notice and hearing during the evaluation process
are not fundamental rights guaranteed by the Constitution.
InGo vs. Court of Appeals (206 SCRA 138 [1992]), we held
that where there is a statutory grant of the right to
preliminary investigation, denial of the same is an
infringement of the due process clause. Hence, if a citizen is
deprived of a right granted by statute, it still amounts to a
violation of the due process clause. By analogy, the denial of
the right to appeal (which is not a natural right nor is part of
due process) constitutes a violation of due process if the right
is granted by the Constitution or by statute.
The source of private respondents basic due process rights
is Section 1, Article III of the Constitution which is a selfexecutory provision, meaning, it is by itself directly or
immediately applicable without need of statutory
implementation, hence may be invoked by proper parties
independently or even against legislative enactment. In
contrast, a non-self-executory provision is one that remains
dormant unless it is given vitality by legislative
implementation. The latter gives the legislature the
opportunity to determine when, or whether such provision

shall be effective thus making it subordinate to the will of the
lawmaking body, which could make it entirely meaningless
by simply refusing to pass the needed implementing statute.
Section 1, Article III of the Constitution is a breathing,
pulsating provision, so to speak. The sovereign itself has
given it life. It is properly invoked by respondent Jimenez
particularly as a citizen of our country. The Extradition Law
need not expressly provide for its applicability.
397
VOL. 343, OCTOBER 17, 2000
397

Petitioner also posits that instituting another layer of notice
and hearing, even when not contemplated in the treaty and
in the implementing law would result in excessive due
process.
I disagree. As earlier stated, admittedly, there can be
excessive layers of appeals and remedies.However, the
observance of due process can hardly be tagged as excessive.
Either it is afforded the citizen or not. In the first place, due
process during the evaluation stage forms part of
administrative due process. The notice and hearing afforded
when the petition for extradition is filed in court form part of
84
judicial due process. Ultimately, these requisites serve as

restrictions on actions of judicial and quasi-judicial agencies
of government (Nachura, Outline/Reviewer in Political Law,
1996 ed., p. 48) and are collectively called requisites of
procedural due process. Moreover, it cannot be
overemphasized that this is the first instance that respondent
Jimenez has invoked his basic due process rights, and it is
petitioner who has elevated the issue to this Court. There is
thus nothing excessive in our act of heeding respondent now.
Petitioner also emphasizes that the technical assessment
and review to determine sufficiency of documents are matters
that can be done without need of intervention by a third
party and that the issues that may be raised during the
proceedings (whether the offense is a military offense or
political offense or whether the request is politically
motivated) can be done through research without need of
intervention by a party. Petitioner, however, admits that the
politically motivated request would pose some difficulties.
Then he proceeds to say that the determination of whether a
request is politically motivated naturally puts at issue the
good faith of the other country in making a request, and that
to make this determination, one has to be fully aware of the
political surroundings upon which the request is made, and
finally, that this function can only be done by the Department
of Foreign Affairs. But what actually happened in the instant
case? The DFA perfunctorily skimmed through the request
and threw the same to the Department of Justice to exercise
its function. Now, petitioner would prohibit the prospective
extraditee from being heard notwithstanding the fact that
the DFA forsook and deserted its bounded duty and

responsibilities and, instead, converted itself into what it
calls a
398
39
8

ANNOTATED
mere post office. Assuming arguendothat the request was

indeed politically motivated, who would then give an
objective assessment thereof when all the interests of the
DOJ is to prepare a petition for extradition, and to complete
the documents in support thereof? It is willing to assist the
requesting state by advising that the papers are not in proper
order (thus resulting in delay because of the long wait for the
proper papers) but is not willing to afford the prospective
extraditee, its own citizen, enjoyment of his basic rights to
preserve his liberty and freedom.
Petitioner also stresses that the paramount interest
involved in the instant case is not delay but the danger of a
fugitives flight. As mentioned above, immediacy is
apparently not a primary concern. Petitioner has given the
requesting state time to complete its documents, particularly
by practically affording the U.S. Government an opportunity
to submit the official English translation of Spanish
85
documents and to have other documents properly

authenticated. He even had time to file the instant case. To
be straightforward, petitioner himself (particularly the
former Secretary of Justice) has taken his time.
And as regards the apprehension of flight, petitioner is
well versed in the use of a hold departure order which could
easily lay his fear of private respondents flight to rest. In
accordance with Department Circular No. 17 issued on
March 19, 1998 by then Secretary of Justice Silvestre H.
Bello III, a hold departure order (HDO) may be issued by the
Secretary of Justice upon the request of the Head of a
Department of the Government; the head of a constitutional
body or a commission or agency performing quasi-judicial
functions; the Chief Justice of the Supreme Court for the
Judiciary; or by the President of the Senate or the Speaker of
the House of Representatives for the legislative body when
the interested party is the Government or any of its agencies
or instrumentalities, in the interest of national security,
public safety or public health, as may be provided by law
(Paragraph 2 [d], Department Circular No. 17 [Prescribing
Rules and Regulations Governing the Issuance of Hold
Departure Orders]). This provision can easily be utilized by
petitioner to prevent private respondents flight.
Also in relation to flight, petitioner advances the
applicability of the balance-of-interest test, which, as
discussed in American Com-
VOL. 343, OCTOBER 17, 2000
399

munications Association vs. Douds(339 U.S. 282), refers to a
situation where particular conduct is regulated in the
interest of public order, and the regulation results in an
indirect, conditional, partial abridgment of speech, resulting
in the duty of the courts to determine which of the conflicting
interests demand the greater protection under the particular
circumstances presented. In other words, if in a given
situation it should appear that there is urgent necessity for
protecting the national security against improvident exercise
of freedom, but the interests of the State are not especially
threatened by its exercise, the right must prevail.
The two other tests which evolved in the context of
prosecution of crimes involving the overthrow of the
government also gain applicability on other substantive evils
which the State has the right to prevent even if these evils do
not clearly undermine the safety of the Republic (Bernas,The
1987 Constitution of the Republic of the Philippines, 1996
ed., p. 219). By analogy, let us consider the legislation subject
of this controversythe Philippine Extradition Law. The
substantive evil that the State would like to prevent is the
flight of the prospective extraditee. A lot lies in how we
respond to the following considerations:
399
86
1. (1)If the prospective extraditee were given notice and

proceedings, would this result in his flight? Would there be
a dangerous or natural tendency that the prospective
extraditee might flee from the country? Is flight the
probable effect of affording him his basic due process
rights?
2. (2)If the prospective extraditee were afforded these basic
due process rights, would this create a clear and present
danger that it will inevitably result in his flight?
3. (3)Should the Court balance the interest of the government
(which refers to the prevention of the flight of the
prospective extraditee from the country and the breach of
international commitments) and that of the individual
(referring to possible indefinite incarceration)? For whom
do we tilt the balance?
Both the treaty and the Extradition Law clearly provide for
the incarceration of the prospective extraditee. Although the
matter has been fully discussed in the then majority opinion
of the Court
400
40
0

ANNOTATED
now being reconsidered, it is significant to survey such

provisions, as follows:
1. (1)The prospective extraditee faces provisional arrest
pending the submission of the request for extradition
based on Paragraph (1), Article 9 of the RP-US Extradition
Treaty which provides that a contracting party may
request the provisional arrest of the person sought
pending presentation of the request, but he shall be
automatically discharged after 60 days if no request is
submitted (paragraph 4). The Extradition Law provides for
a shorter period of 20 days after which the arrested person
could be discharged (Section 20[d]). And as observed in
my ponencia,although the Extradition Law is silent in this
respect, the provisions mean that once a request for
extradition is forwarded to the Requested State, the
prospective extraditee may be continuously detained, or if
not, subsequently rearrested (Paragraph [5], Article 9, RPUS Extradition Treaty), for he will only be discharged if no
request is later submitted.
2. (2)The prospective extraditee may also be subject to
temporary arrest during the pendency of the extradition
petition in court (Section 6, Presidential Decree No. 1069).
With the patent insistence of the requesting state to have
the RP-US Extradition Treaty strictly enforced, as well as
the noticeable zeal and attention of the Department of
Justice on the extradition of respondent Jimenez, one
cannot but conclude that the filing of a petition for
extradition by the Department of Justice is an absolute
certainty. This is especially obvious from the fact that the
Department of Justice has even allowed the requesting
87
state to correct the deficiencies of the documents in

support of the request.
Filipino countryman facing possible exile to a foreign land.

Forget the personality and controversial nature involved.
Petitioner likens the evaluation procedure to the cancellation

of passports held by persons facing criminal prosecution. This
situation is discussed in the vintage case ofSuntay vs.
People (101 Phil. 833[1957]) where an accused in a criminal
case for seduction applied for and was granted a passport by
the Department of Foreign Affairs and later left the
Philippines for the United States. We held that due to the
accuseds sudden departure from the country in such a
convenient time which could readily be interpreted to mean
as a deliberate attempt on his part to flee from justice, the
Secretary of Foreign Affairs had the discretion to withdraw or
cancel the
Imagine the inconvenience brought about by incarceration

when, on the extreme, the prospective extraditee could
prevent it by pointing out that, for instance, the request is
politically motivated. We are not only referring to private
respondent, who petitioner himself describes as one who
luckily has access to media. The ruling in the case at bar also
affects the lives of ordinary Filipinos who are far from the
limelight. Shall we allow them to be subjected to
incarceration just because they have no access to information
about imminent dangers to their liberty? What should stop
us from protecting our own Filipino brethren?
401
VOL. 343, OCTOBER 17, 2000
401

accuseds passport even without a hearing, considering that
such cancellation was based upon an undisputed factthe
filing of a serious criminal charge against the passport
holder.
The situation in the case at bar is different precisely
because we are looking at a situation where we have a
In Lao Gi vs. Court of Appeals(180 SCRA 756 [1989]), we

held that deportation proceedings do not partake of the
nature of a criminal action, however, considering that said
proceedings are harsh and extraordinary administrative
matters affecting the freedom and liberty of a person, the
constitutional right of such person to due process should not
be denied. Thus, the provisions of the Rules of Court
particularly on criminal procedure are applicable to
deportation proceedings. And this protection was given to
Lao Gi, a former Filipino citizen whose citizenship was set
aside on the ground that it was founded on fraud and
misrepresentation, resulting in a charge for deportation filed
against him, his wife, and children. If an alien subject to the
States power of deportation (which is incidentally a police
measure against undesirable aliens whose presence in the
88
country is found to be injurious to the public good and

domestic tranquility of the people) is entitled to basic due
process rights, why not a Filipino?
international law which describe a sovereign state as

independent and not a dependency of another state (Salonga
& Yap, Public International Law, 1992 ed., p. 7).
On the other hand, let us put the executive departments

international commitments in perspective.
If this were a case before international tribunals,

international obligations would undoubtedly reign supreme
over national law. However, in the municipal sphere, the
relationship between international law and municipal law is
determined by the constitutional law of individual states
(Ibid., pp. 11-12). In the Philippines, the doctrine of
incorporation is observed with respect to customary
international law in accordance with Article II, Section 2 of
the 1987 Constitution which in essence provides that the
Philippines adopts the generally accepted principles of
international law as part of the law of the land.
The very essence of a sovereign state is that it has no

superior. Each sovereign state is supreme upon its own
limits. It is, there402
40
2

ANNOTATED
fore, fundamental in Private International Law that it is

within the power of such state at any time to exclude any or
all foreign laws from operating within its borders to the
extent that if it cannot do this, it is not sovereign. Hence,
when effect is given to a foreign law in any territory, it is only
because the municipal law of that state temporarily abdicates
its supreme authority in favor of the foreign law, which for
the time being, with reference to that particular matter,
becomes itself, by will of the state, its municipal law
(Paras, Phil. Conflict of Laws, 1996 ed., p. 5). However, to be
precise, the instant case involves principles of public
The Extradition Treaty on the other hand is not

customary international law. It is a treaty which may be
invalidated if it is in conflict with the Constitution. And any
conflict therein is resolved by this Court, which is the
guardian of the fundamental law of the land. No foreign
power can dictate our course of action, nor can the
observations of a handful of American lawyers have any legal
bearing, as if they were law practitioners in this country.
One last point. Petitioner argues that one can search the
RP-US Extradition Treaty in vain for any provision saying
that notice and hearing should be had during the evaluation
process. But it is also silent on other pointson the period
within which the evaluation procedure should be done; on the
89
propriety of the act of the Requested State advising the

Requesting State what papers are proper to be submitted in
support of the extradition request (specifically on
authentication and on translation); yet these mat403
VOL. 343, OCTOBER 17, 2000
403
extraditee to the foreign government concerned. Anyway,

petitioner himself has argued that it is the entity
knowledgeable of whether the request was politically
motivated in the first place. The possibility of the prospective
extraditees exile from our land lies in its hands.
WHEREFORE, I vote to DENY the instant motion for
reconsideration.
DISSENTING OPINION

ters are not in question. And as regards the matter of bail,
suffice it to state that the Court is not harboring the idea that
bail should be available in extradition proceedings. It merely
rhetorically presented one of the legal implications of the
Extradition Law. This matter is not even in issue.
In closing, it is significant to reiterate that in the United
States, extradition begins and ends with one entitythe
Department of Statewhich has the power to evaluate the
request and the extradition documents in the beginning, and
in the person of the Secretary of State, the power to act or not
to act on the courts determination of extraditability. Let us
hope that after the extradition petition has been filed and
heard by the proper court, the executive department,
represented in our country by the Department of Foreign
Affairs, will this time dutifully discharge its function, like its
American counterpart, in making the final and ultimate
determination whether to surrender the prospective
YNARES-SANTIAGO, J.:
On January 18, 2000, 1 was one of the nine (9) members of
the Court who voted to dismiss the petition of the Secretary
of Justice. My vote was intended to grant any Filipino citizen,
not Mr. Mark Jimenez alone, a fair and early opportunity to
find out why he should be forcibly extradited from his
homeland to face criminal trial in a foreign country with all
its unfamiliar and formidable consequences.
After going over the grounds given by the Government in
support of the motion for reconsideration, I regret that I
cannot go along with the new ruling of the Courts recent
majority. I am convinced that there is greater reason to strike
the balance in favor of
404
90
40
4

ANNOTATED

a solitary beleaguered individual against the exertion of
overwhelming Government power by both the Philippines
and the United States.To grant the respondent his right to
know will not, in any significant way, weaken or frustrate
compliance with treaty objectives. But it will result in
jurisprudence which reasserts national dignity and gives
meaningful protection to the rights of any citizen who is
presumed innocent until proven guilty.
The basic considerations behind my vote to deny the
petition have not changed inspite of the detailed explanations
in the motion for reconsideration. On the contrary, I
recognize the grant of the respondents request even more
justified and compelling.
In the first place, I find nothing unreasonable, illegal or
repugnant for a man about to be brought to trial to ask for
the charges raised against him. It is a perfectly natural and
to-be-expected request. There is also nothing in the RP-US
Extradition Treaty that expressly prohibits the giving of such
information to an extraditee before trial. On the other hand,
its grant is in keeping with basic principles of fairness and
even-handed justice.
I find petitioners reasons for rejecting the exercise of the
right to know as more illusory than real. Delay is not an
issue. Delays were incurred in the United States before the
91
request for extradition was finalized. Delays in the

Philippines are inevitable unless a skilled prosecutor and a
competent Judge will ably control the course of the trial in a
court with clogged dockets.It is these delays that should be
addressed. Why should a few days given to an accused to
study the charges against him be categorized as unwarranted
and intolerable delay?
I reject the argument that public interest, international
commitments and national dignity would be compromised if
Mr. Mark B. Jimenez is shown the extradition treaty so he
can more adequately prepare his defense. Merely raising
insuperable grounds does not insure their validity. I find the
above concerns totally inapplicable under the circumstances
of this case.
I beg the Courts indulgence as I discuss one by one the
reasons for the Courts change of mind and the grounds for
the grant of the motion for reconsideration.
405
VOL. 343, OCTOBER 17, 2000
405

I dissent from the first ground which implies that a claim
shall be rejected and a protection may not be allowed if it is
not found in the express provisions of the RP-US Extradition
Treaty. It should be the other way around. Any right not

prohibited by the Treaty which arises from Philippine law,
custom or traditions of decency and fairness should be
granted and not denied. The referral by the Department of
Foreign Affairs to the Department of Justice and the high
profile collaboration between the two powerful Departments,
found in Presidential Decree No. 1069, is not also provided
for in the Treaty. Does that mean it is prohibited?
There is no provision in the Treaty which mandates that
an extraditee should be kept in the dark about the charges
against him until he is brought to trial. The Treaty deals only
with the trial proper. It cannot possibly cover everything. Our
law and jurisprudence are not superseded by the mere
absence of a specific provision in a treaty. What is not
prohibited should be allowed.
The respondent is not asking for any favor which
interferes with the evaluation of an extradition request.
While two powerful institutions, the Department of Foreign
Affairs and the Department of Justice, are plotting the course
of a citizens life or liberty, I see no reason why the person
involved should not be given an early opportunity to prepare
for trial. There is no alteration or amendment of any Treaty
provision. Section 6 of Presidential Decree No. 1069, which
provides for service of the summons and the warrant of
arrest once the extradition court takes over, is a minimum
requirement for the extraditees protection. Why should it be
used against him? Why should it be treated as a prohibition
against the enjoyment of rights to which a citizen may be
92
entitled under a liberal interpretation of our laws, treaties

and procedures?
With all due respect, I find the second reason in the
Courts Resolution, ostensibly based on the intent behind the
RP-US Extradition Treaty, to be inapplicable, exaggerated
and unfair. Does the grant of an early opportunity to prepare
for ones defense really diminish our countrys commitment to
the suppression of crime? How can a persons right to know
what blows will strike him next be a States coddling of a
perpetrator of a crime? Why should the odious crimes of
terrorism and drug trafficking be used as inflammatory
arguments to decide cases of more subjective and problem406
40
6

ANNOTATED
atical offenses like tax evasion or illegal election campaign

contributions? Terrorism and drug trafficking are capital
offenses in the Philippines. There should be no legal obstacles
to speedily placing behind bars a Filipino terrorist or drug
dealer or summarily deporting a non-citizen as an
undesirable alien. But this should in no way lessen a greater
care and more humane handling of an offense not as clear-cut
or atrocious. The use of epithetical arguments is unfair.
In this particular case, it is not the respondents request

for copies of the charges which is delaying the extradition
process. Delay is caused by the cumbersome procedures
coupled with ostentatious publicity adopted by two big
Departmentsthe Department of Foreign Affairs and the
Department of Justiceto evaluate what is really a simple
question: whether or not to file extradition proceedings. But
we are unfairly laying the blame on Mark Jimenez and using
it as an excuse to deny a basically reasonable request which
is to him of paramount importance.
I find this case not so much a violation of any international
commitment as it is an unnecessary exertion of the strong
arm of the law and an unfortunate display of dominant
Government power.
The third factor mentioned by the majority of the Court is
based on a mistaken premise. It assumes that furnishing a
potential extraditee with a copy of the extradition request is
prohibited by the Treaty. It is not.The silence of the Treaty on
the matter does not mean it cannot be done. To view silence as
prohibition is completely anathema to statutory construction
of constitutional protections.
Canada, Hong Kong, and the United States may not
furnish copies of the charges during the evaluation stage. But
this could be due to their use of an entirely different and
abbreviated evaluation process.Absent clear and specific
prohibitions in a treaty, the procedure by which rights are
enforced and wrongs redressed is primarily one of national
93
regulation and control. There is no universal uniform

procedure required of all countries. Every State has the
prerogative of devising its own guidelines in securing
essential justice. The fact that certain countries do not follow
the practice does not mean that we cannot adopt measures
that are fair, protective of private interests to life and liberty,
and not really damaging
407
VOL. 343, OCTOBER 17, 2000
407

to Philippine and American governmental concerns. Is there
anything in the request of Mark Jimenez which is offensive to
the principles of ordered liberty and justice treated as
fundamental? It is the Government which is acting in an
uncustomary, frigid and unfeeling manner in this case.
Regarding the fourth reason for the majority decision, I
agree that an extradition proceeding is sui generis.It may not
yet involve the determination of innocence or guilt. But
certainly, such is the only result of extradition. A persons
good name, dignity, reputation and honor are at stake. In no
way should these values be treated lightly simply because
proceedings have not yet reached the criminal trial proper.
The preliminary procedure request by the respondent may be
different from preliminary investigations under our law. But

the right to some kind of proper notice is fundamental.
A proposed extraditee should not be denied a reasonable
opportunity to prepare for trial. In an extradition trial, there
may be reasons for the exercise of special care and caution. It
is not a casual occurrence to give up your citizen to another
countrys criminal justice system. I do not want to sound
unduly jingoistic but in certain Western countries, especially
those using the jury system, a second-class citizen or a
colored non-citizen may not always get equal justice inspite of
protestations to the contrary. The prospective extraditee,
therefore, deserves every lawful consideration which his poor
third-world country can give him. Instead of being influenced
by non-applicable doomsday pronouncements regarding
terrorists, drug dealers, and internationally syndicated
criminals being pampered, all we need to apply is plain
common-sense coupled with a compassionate and humane
approach.
The fifth factor influencing the Court regarding threats to
respondents liberty should not be dismissed as fancied or
imaginary. The insistent denial of a simple right to be
informed is the best argument that the Treaty is being
interpreted in an unduly strict manner contrary to our
established rules on transparency and candidness. At this
early stage, we are already interpreting the RP-US
Extradition Treaty in a most restrictive manner. The terms
of any law or treaty can be interpreted strictly or liberally.
94
What reasons do we have to adopt a rigidly strict

interpretation when what is involved is human liberty?
408
40
8

ANNOTATED
While extradition treaties should be faithfully observed and

interpreted, with a view to fulfilling the nations obligations
to other powers, this should be done without sacrificing the
constitutional rights of the accused.
1
I repeat that what Mark Jimenez requests is only an

opportunity to know the charges against him. We are not
judging a game where the Government may spring a surprise
on him only at the trial. I find nothing revolting in the
respondents request. And this brings me to the sixth ground
given by the latest Resolution of the Court.
We have to be cautious in relying on the so-called
balancing of the sovereign powers of the State against private
interests of a wretched solitary individual. What chance does
any person have against this kind of argument unless the
Court approaches the problem in a libertarian manner?
I do not see any important State interests or any

governments promotion of fundamental public interests or
policy objectives being prejudiced. The respondents right to
know the charges against him early does not clash in any way
with any paramount national interest. The invocation of State
interests by the Secretary of Justice is more illusive and
rhetorical than real.
There is nothing nebulous in an extraditees request to
prepare for trial. Whether or not the degree of prejudice to be
suffered by the respondent is weak depends on the particular
circumstance of each case. A blanket denial in all cases
cannot be based in an all-embracing invocation of public
interest or sovereign power. Neither should separation of
powers be pleaded. Whether or not to extradite is a judicial
function. The protection of human rights has never been
denied on grounds of comity among the three great
departments of Government.The power to enter into treaties
is an executive function but its implementation on whether or
not certain protections may be accorded is judicial.
The invocation of executive prerogatives against a judicial
interference has to be carefully studied. I admit that the
balancing of individual liberty and governmental authority is
a delicate and formidable task. It should, however, be
accepted that the balance is
_______________
1
31A Am Jur 2d Extradition 19.
95
409
VOL. 343, OCTOBER 17, 2000
409

an ever-shifting one. There should be no setting down of a
permanent rule of denial even under changed circumstances.
With all due respect, I disagree with the Courts majority
as it uses principles which to me are not applicable under the
circumstances of this petition. Unless there are compelling
reasons, which do not exist in this case, the balance should
not be tilted in favor of interference with a legitimate defense
of life or liberty.
The considerations towards the end of the Courts
Resolution about the national interest in suppressing crime,
the irreversible globalization of non-refuge to criminals, and,
more specifically, the mention of transnational crimes, are
hardly relevant to the subject matter of this case.
Illegal campaign contributions and tax evasions are not
transnational crimes. Mr. Mark B. Jimenez is not a refugee
criminal until he is proven guilty and then runs away. The
Court is prejudging his guilt when in fact it is an American
court that still has to try him.
The kind of protection advocated by the Court should be

not directed towards hypothetical cases of terrorism or
international drug trafficking. There are more than enough
valid measures to insure that criminals belonging to
international syndicates do not escape apprehension and
trial. Hypothetical fears of non-applicable crimes should not
be conjured in this particular case for a blanket denial of the
right to information under all circumstances. To grant the
respondents request would have no truly dangerous
consequences to the administration of justice.
I respectfully urge the Court to rescue libertarian
principles from the overzealous and sometimes inexplicable
efforts of executive officers to tread upon them. Let us not
unnecessarily distance ourselves from the felt and accepted
needs of our citizens in this novel and, for us, uncharted field
of extradition. The Court is tasked to defend individual
liberty in every major area of governance including
international treaties, executive agreements, and their
attendant commitments.
_______________
2
Hughes v. Pflanz, 138 Fed. 980.
410
41
0

ANNOTATED
96
Transfarm & Co., Inc. vs. Daewoo

Corporation
In view of the foregoing, I vote to DENY the motion for
reconsideration and to DISMISS the petition.
Urgent motion for reconsideration granted, judgment and
order reversed and set aside.
Note.Simple justice demands, and the law requires no
less, that a defendant must know what the complaint against
him is all about. (Virata vs. Sandiganbayan, 272 SCRA
661 [1997])
o0o
G.R. No. 173034. October 9, 2007.
PHARMACEUTICAL and HEALTH CARE ASSOCIATION of

the PHILIPPINES, petitioner,vs. HEALTH SECRETARY
FRANCISCO
T.
DUQUE
III;
HEALTH
UNDERSECRETARIES DR. ETHELYN P. NIETO, DR.
MARGARITA M. GALON, ATTY. ALEXANDER A.
PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT
SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID
J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.
Judicial Review; Locus Standi;Associations; An organization
has standing to assert the concerns of its constituentsit is but the
medium through which its individual members seek to make more
effective the expression of their voices and the redress of their
grievances.With regard to the issue of whether petitioner may
prosecute this case as the real party-in-interest, the Court adopts
the view enunciated inExecutive Secretary v. Court of Appeals, 429
SCRA 81 (2004), to wit: The modern view is that an association
has standing to complain of injuries to its members. This view
fuses the legal identity of an association with that of its
97
members.An association has standing to file suit for its

workers despite its lack of direct interest if its members are
affected by the action. An organization has standing to
assert the concerns of its constituents. x x x x x x x We note
that, under its Articles of Incorporation, the respondent was
organized x x x to act as the representative of any individual,
company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied
_______________
*
EN BANC.
266
2
66
SUPREME COURT
REPORTS ANNOTATED
Pharmaceutical and Health

Care Association of the Philippines
vs. Duque III
therein. The respondent is, thus, the appropriate party
to assert the rights of its members, because it and its
members are in every practical sense identical. x x x The
respondent [association] is but the medium through which
its individual members seek to make more effective the
expression of their voices and the redress of their
grievances (Emphasis supplied), which was reasserted inPurok
Bagong Silang Association, Inc. v. Yuipco, 489 SCRA 382 (2006),

where the Court ruled that an association has the legal personality
to represent its members because the results of the case will affect
their vital interests.
International Law; Treaties;Doctrine of Incorporation and
Doctrine of Transformation; Words and Phrases; Under the 1987
Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation; Treaties
become part of the law of the land through transformation
pursuant to Article VII, Section 21 of the Constitution.Under the
1987 Constitution, international law can become part of the sphere
of domestic law either by transformation orincorporation. The
transformation method requires that an international law be
transformed into a domestic law through a constitutional
mechanism such as local legislation. The incorporation method
applies when, by mere constitutional declaration, international law
is deemed to have the force of domestic law. Treaties become part
of the law of the land through transformationpursuant to Article
VII, Section 21 of the Constitution which provides that [n]o treaty
or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the
Senate. Thus, treaties or conventional international law must go
through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic
conflicts.
Same; Same; Same; Milk Code (E.O. No. 51); World Health
Assembly (WHA); International Code of Marketing of Breastmilk
Substitutes (ICMBS); Advertisements; While the International Code
of Marketing of Breastmilk Substitutes (ICMBS) and World Health
Assembly (WHA) Resolutions are not treaties as they have not been
concurred in by at least two-thirds of all members of the Senate, the
98
International Code of Marketing of Breastmilk Substitutes

(ICMBS) which was adopted by the World Health Assembly (WHA)
in 1981 had been transformed into domestic law through local
legislation, the
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
267
VOL. 535, OCTOBER

9, 2007
advertising or other forms of promotion to the general public of
authorized
and
approved
by
the
Inter-Agency
Committee (IAC).
2
67

vs. Duque III
Same; Same; Same; Generally

Accepted
Principles
of
Law; Section 2, Article II of the 1987 Constitution, whereby the
Philippines adopts the generally accepted principles of
international law as part of the law of the land, embodies the
incorporation method.Section 2, Article II of the 1987
Constitution, to wit: SECTION 2. The Phil-ippines renounces war
as an instrument of national policy,adopts the generally
accepted principles of international law as part of the law
Milk Code; The Milk Code is almost a verbatim reproduction

of the International Code of Marketing of Breastmilk Substitutes
(ICMBS), but the Code did not adopt the provision in the
(ICMBS) absolutely prohibiting advertising or other forms of
promotion to the general public of products within the scope of the
(ICMBS).The ICMBS and WHA Resolutions are not treaties as
they have not been concurred in by at least two-thirds of all
members of the Senate as required under Section 21, Article VII of
the 1987 Constitution. However, the ICMBS which was adopted by
the WHA in 1981 had been transformed into domestic law through
local legislation, the Milk Code. Consequently, it is the Milk Code
that has the force and effect of law in this jurisdiction and not the
ICMBS per se. The Milk Code is almost a verbatim reproduction of
the ICMBS, but it is well to emphasize at this point that the Code
of the land and adheres to the policy of peace, equality, justice,

freedom, cooperation and amity with all nations (Emphasis
supplied), embodies theincorporation method.
Same; Same; Same; Same; Words
and
Phrases; Generally
accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations; Generally
accepted principles of international law refers to norms of general
or customary international law which are binding on all states, i.e.,
renunciation of war as an instrument of national policy, the
principle of sovereign
268
did not adopt the provision in the ICMBS absolutely prohibiting

99
2
68
SUPREME COURT
REPORTS ANNOTATED

vs. Duque III
immunity, a persons right to life, liberty and due process, and
pacta sunt servanda, among others.InMijares v. Ranada, 455
SCRA 399 (2005) the Court held thus: [G]enerally accepted
principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if
they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules
accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice
on the part of States; and apsychological element known as
the opinion juris sive necessitates(opinion as to law or
necessity). Implicit in the latter element is abelief that the
practice in question is rendered obligatory by the existence
of a rule of law requiring it. (Emphasis supplied) Generally
accepted principles of international law refers to norms of general
or customary international law which are binding on all states,i.e.,
renunciation of war as an instrument of national policy, the
principle of sovereign immunity, a persons 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). OConnell holds that certain priniciples are part of
100
international law because they are basic to legal systems
elements of custom: the material factor, that is, how states
generally and hence part of the jus gentium. These
behave, and the psychological or subjective factor, that is,
principles, he believes, are established by a process of reasoning

based on the common identity of all legal systems. If there should
be doubt or disagreement, one must look to state practice and
determine whether the municipal law principle provides a just and
acceptable solution. x x x (Emphasis supplied)
why they behave the way they do. x x x x The initial factor for
Same; Same; Same; Same; Same;Customary

International
Law; Custom or customary international law means a general and
consistent practice of states followed by them from a sense of legal
obligation [opinio juris], which statement contains the two basic
elements of custom: the material factor, that is, how states behave,
and, the psychological or subjective factor, that is, why they behave
the way they do; Customary international law is deemed
incorporated into our domestic system.Fr. Joaquin G. Bernas
defines customary
269
VOL. 535, OCTOBER

9, 2007
2
69

vs. Duque III
determining the existence of custom is the actual behavior of

states. This includes several elements: duration, consistency, and
generality of the practice of states. The required duration can be
either short or long. x x x x x x x Duration therefore is not the most
important element. More important is the consistency and the
generality of the practice. x x x x x x x Once the existence of state
practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they
do because they consider it obligatory to behave thus or do
they do it only as a matter of courtesy? Opinio juris, or the
belief that a certain form of behavior is obligatory, is what
makes practice an international rule. Without it, practice is
not law. (Italics and Emphasis supplied) Clearly customary
international law is deemed incorporated into our domestic system.
Same; Same; Same; Same; Milk Code (E.O. No. 51); World
Health Assembly (WHA); While regulations, along with conventions
and agreements, duly adopted by the World Health Assembly
(WHA) bind member states, recommendations of the World Health
Assembly (WHA) do not come into force for members, in the same
way that conventions or agreements and regulations come into
force.Regulations, along with conventions and agreements, duly
adopted by the WHA bind member states thus: x x x On the
other hand, under Article 23, recommendations of the WHAdo
not come into force for members, in the same way that
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
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
101
respect to any matter within the competence of the Organization.

(Emphasis supplied) The absence of a provision in Article 23 of any
mechanism by which the recommendation would come into force
for member states is conspicuous.
270
2
70
SUPREME COURT
REPORTS ANNOTATED

vs. Duque III
Same; Same; Same; Same; Same;Same; International Code of
Marketing of Breastmilk Substitutes (ICMBS); Unlike what has
been done with the International Code of Marketing of Breastmilk
Substitutes (ICMBS) whereby the legislature enacted most of the
provisions into law which is the Milk Code, the subsequent World
Health Assembly (WHA) Resolutions, specifically providing for
exclusive breast-feeding from 0-6 months, continued breastfeeding
up to 24 months, and absolutely prohibiting advertisements and
promotions of breast-milk substitutes, have not been adopted as a
domestic law.The WHA Resolution adopting the ICMBS and
subsequent WHA Resolutions urging member states to implement
the ICMBS are merely recommendatory and legally nonbinding. Thus, unlike what has been done with the ICMBS
whereby the legislature enacted most of the provisions into
law
which
Resolutions,
is
the
Milk
specifically
Code,
the
providing
subsequent
for
WHA
breastfeeding from 0-6 months, continued breastfeed-ing up

to 24 months, and absolutely prohibiting advertisements
and promotions of breastmilk substitutes, have not been
adopted as a domestic law.
Same; Same; Same; Same; Same;Same; Same; Soft
Law; Words and Phrases; While soft law does not fall into any of
the categories of international law set forth in Article 38, Chapter
III of the 1946 Statute of the International Court of Justice, it is,
however, an expression of non-binding norms, principles, and
practices that influence state behavior.It is propounded that WHA
Resolutions may constitute soft law or non-binding norms,
principles and practices that influence state behavior. Soft law
does not fall into any of the categories of international law set forth
in Article 38, Chapter III of the 1946 Statute of the International
Court of Justice. It is, however, an expression of non-binding
norms, principles, and practices that influence state behavior.
Certain declarations and resolutions of the UN General Assembly
fall under this category. The most notable is the UN Declaration of
Human Rights, which this Court has enforced in various cases,
specifically, Government of Hongkong Special Administrative
Region v. Olalia, 521 SCRA 470 (2007); Mejoff v. Director of
Prisons, 90 Phil. 70, Mijares v. Raada, 455 SCRA 397 (2005),
and Shangri-la International Hotel Management, Ltd. v.
Developers Group of Companies, Inc., 486 SCRA 405 (2006).
271
VOL. 535, OCTOBER

9, 2007
2
71
exclusive
102

vs. Duque III
Same; Same; Same; Same; Same;Same; Same; Administrative
Law; The provisions of the World Health Assembly (WHA)
Resolutions cannot be considered as part of the law of the land that
can be implemented by executive agencies without the need of a law
enacted by the legislature.Respondents failed to establish that
the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions
of the WHA Resolutions into domestic law.The provisions of the
WHA Resolutions cannot be considered as part of the law of
Milk Code, but not those of subsequent World Health Assembly

(WHA) Resolutions, can be validly implemented by the Department
of Health (DOH).Respondents submit that the national policy on
infant and young child feeding is embodied in A.O. No. 2005-0014,
dated May 23, 2005. Basically, the Administrative Order declared
the following policy guidelines: (1) ideal breastfeeding practices,
such as early initiation of breastfeed-ing, exclusive breastfeeding
for the first six months, extended breast-feeding up to two years
and beyond; (2) appropriate complementary feeding, which is to
start at age six months; (3) micronutrient supplementation; (4)
universal salt iodization; (5) the exercise of other feeding options;
and (6) feeding in exceptionally difficult circumstances. Indeed, the
primacy of breastfeeding for children is emphasized as a national
health policy. However, nowhere in A.O. No. 2005-0014 is it
declared that as part of such health policy, the advertise-
the land that can be implemented by executive agencies
272
without the need of a law enacted by the legislature.

Administrative Law; Milk Code;Health; Breastfeeding; Breastmilk Substitutes; Advertisements; National Health Policy (A.O. No.
2005-0014);The primacy of breastfeeding for children is emphasized
as a national health policy but nowhere in A.O. No. 2005-0014 is it
declared that as part of such health policy, the advertisement or
promotion of breastmilk substitutes should be absolutely
prohibited; The national policy of protection, promotion and
support of breast-feeding cannot automatically be equated with a
total ban on advertising for breastmilk substitutes; In view of the
enactment of the Milk Code which does not contain a total ban on
the advertising and promotion of breastmilk substitutes, it follows
that a total ban policy could be implemented only pursuant to a law
amending the Milk Code passed by the constitutionally authorized
branch of government, the legislatureonly the provisions of the
2
72
SUPREME COURT
REPORTS ANNOTATED

vs. Duque III
ment or promotion of breastmilk substitutes should be
absolutely prohibited. The national policy of protection, promotion
and support of breastfeeding cannot automatically be equated with
a total ban on advertising for breastmilk substitutes. In view of the
enactment of the Milk Code which does not contain a total ban on
the advertising and promotion of breastmilk substitutes, but
103
instead, specifically creates an IAC which will regulate said

advertising and promotion, it follows that a total ban policy could
be implemented onlypursuant to a law amending the Milk Code
passed by the constitutionally authorized branch of government,
the legislature. Thus, only the provisions of the Milk Code,
but not those of subsequent WHA Resolutions, can be validly
implemented by the DOH through the subject RIRR.
Same; Same; Same; Same; Same;The coverage of the Milk
Code is not dependent on the age of the child but on the kind of
product being marketed to the public.The coverage of the Milk
Code is not dependent on the age of the child but on the kind of
product being marketed to the public. The law treats infant
formula, bottle-fed complementary food, and breastmilk substitute
as separate and distinct product categories.
Same; Same; Same; Same; Same;Statutory Construction; The
entirety of the Revised Implementing Rules and Regulations
(RIRR), not merely truncated portions thereof, must be considered
and construed togetherthe particular words, clauses and phrases
in the Rule should not be studied as detached and isolated
expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts and in order to
produce a harmonious whole; The Revised Implementing Rules and
Regulations (RIRR), just like the Milk Code, also recognizes that in
certain cases, the use of breastmilk substitutes may be proper.It is
also incorrect for petitioner to say that the RIRR, unlike the Milk
Code, does not recognize that breastmilk substitutes may be a
proper and possible substitute for breastmilk. The entirety of the
RIRR, not merely truncated portions thereof, must be considered
and construed together. As held in De Luna v. Pascual, 495 SCRA
42 (2006), [t]he particular words, clauses and phrases in the Rule
should not be studied as detached and isolated expressions, but the

whole and every part thereof must be considered in fixing the
meaning of any of its parts and in order to produce a harmonious
whole. Section 7 of the RIRR provides that when medically
indicated and only when
273
VOL. 535, OCTOBER

9, 2007
2
73

vs. Duque III
necessary, the use of breastmilk substitutes is proper if
based on complete and updated information. Section 8 of the RIRR
also states that information and educational materials should
include information on the proper use of infant formula when the
use thereof is needed. Hence, the RIRR, just like the Milk
Code, also recognizes that in certain cases, the use of
breastmilk substitutes may be proper.
Same; Same; Same; Same; Same;Advertisements; Police
Power; Health is a legitimate subject matter for regulation by the
Department of Health (DOH) (and certain other administrative
agencies) in exercise of police powers delegated to it; Health
information, particularly advertising materials on apparently nontoxic products like breastmilk substitutes and supplements, is a
relatively new area for regulation by the Department of Health
(DOH).Health is a legitimate subject matter for regulation by
104
the DOH (and certain other administrative agencies) in exercise of

police powers delegated to it. The sheer span of jurisprudence on
that matter precludes the need to further discuss it.However,
health information, particularly advertising materials on
apparently non-toxic products like breast-milk substitutes and
supplements, is a relatively new area for regulation by the DOH.
Same; Same; Same; Same; Same;Same; The Department of
Healths (DOHs) power under the Milk Code to control information
regarding breastmilk vis--vis breastmilk substitutes is not
absolute as the power to control does not encompass the power to
absolutely prohibit the advertising, marketing, and promotion of
breastmilk substitutes.When it comes to information regarding
nutrition of infants and young children, the Milk Code specifically
delegated to the Ministry of Health (hereinafter referred to as
DOH) the power to ensure that there is adequate, consistent and
objective information on breastfeeding and use of breastmilk
substitutes, supplements and related products; and the power
to control such information. These are expressly provided for in
Sections 12 and 5(a), to wit: x x x Further, DOH is authorized by
the Milk Code to control the content of any information on
breastmilk vis--vis breastmilk substitutes, supplement and
related products, in the following manner: x x x The DOH is also
authorized to control the purpose of the information and to whom
such information may be disseminated under Sections 6 through 9
of the Milk Code to ensure that the information that
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vs. Duque III
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 DOHs power under the Milk
Code
to control information
regarding
breastmilk vis-visbreastmilk substitutes is not absoluteas the power to control
does not encompass the power to absolutely prohibit the
advertising, marketing, and promotion of breastmilk substitutes.
Same; Same; Same; Same; Same;Same; Section 26(c) of the
Revised Implementing Rules and Regulations (RIRR) which
requires containers and labels to state that the product offered is
not a substitute for breastmilk, is a reasonable means of enforcing
Section 8(b) of the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in Section 2
of the Milk Code.It may be argued that Section 8 of the Milk
Code refers only to information given to health workers regarding
breastmilk substitutes, not to containers and labels thereof.
However, such restrictive application of Section 8(b) will result in
the absurd situation in which milk companies and distributors are
forbidden to claim to health workers that their products are
substitutes or equivalents of breastmilk, and yet be allowed to
display on the containers and labels of their products the exact
opposite message. That askewed interpretation of the Milk Code is
precisely what Section 5(a) thereof seeks to avoid by mandating
that all information regarding breast-milk vis--vis breastmilk
105
substitutes beconsistent, at the same time giving the government

control over planning, provision, design, and dissemination of
information on infant feeding. Thus, Section 26(c) of the RIRR
which requires containers and labels to state that the product
offered is not a substitute for breastmilk, is a reasonable means of
enforcing Section 8(b) of the Milk Code and deterring
circumvention of the protection and promotion of breastfeeding as
embodied in Section 2 of the Milk Code.
Same; Same; Same; Same; Same;Same; The
requirement
under Section 26(f) of the Revised Implementing Rules and
Regulations (RIRR) for the label to contain the message regarding
health hazards including the possibility of contamination with
pathogenic microorganisms is in accordance with Section 5(b) of the
Milk Code.The label of a product contains information about
said product intended
275
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vs. Duque III
for the buyers thereof. The buyers of breastmilk substitutes
are mothers of infants, and Section 26 of the RIRR merely adds a
fair warning about the likelihood of pathogenic microorganisms
being present in infant formula and other related products when
these are prepared and used inappropriately. Petitioners counsel
has admitted during the hearing on June 19, 2007 that formula
milk is prone to contaminations and there is as yet no technology
that allows production of powdered infant formula that eliminates
all forms of contamination. 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.
Health (DOH) evidently arrogated to itself not only the regulatory
authority given to the Inter-Agency Committee (IAC) but also
imposed absolute prohibition on advertising, promotion, and
marketing.Section 11 of the RIRR, to wit: SECTION
11. Prohibition.No advertising, promotions, sponsorships, or
marketing materials and activities for breastmilk substitutes
intended for infants and young children up to twenty-four (24)
months, shall be allowed, because they tend to convey or give
subliminal messages or impressions that undermine breastmilk
and breastfeeding or otherwise exaggerate breastmilk substitutes
and/or replacements, as well as related products covered within the
scope of this Code, prohibits advertising, promotions, sponsorships
or marketing materials and activities for breastmilk substitutes in
line with the RIRRs declaration of principle under Section 4(f), to
wit: SECTION 4.Declaration of Principles.x x x x (f) Advertising,
promotions, or sponsorships of infant formula, breastmilk
substitutes and other related products are prohibited. The DOH,
through its co-respondents, evidently arrogated to itself not only
the regulatory authority given to the IAC but also imposed
absolute prohibition on advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the
requirement of the Milk Code in Section 6 thereof for prior
106
approval by IAC of all advertising, marketing and promotional

materials prior to dissemination.
Same; Same; Same; Same; Same;Same; Sections 11 and 4(f) of
the Revised Implementing Rules and Regulations (RIRR) are
clearly violative of the Milk Code.Sections 11 and 4(f) of the RIRR
are clearly violative of the Milk Code. However, although it is the
IAC
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SUPREME COURT
REPORTS ANNOTATED
screen advertising, promotional, or other marketing materials.

Section 12(b) of the Milk Code designates the DOH as the principal
implementing agency for the enforcement of the provisions of the
Code. In relation to such responsibility of the DOH, Section 5(a) of
the Milk Code states that: SECTION 5. Information and
Education.(a) The government shall ensure that objective and
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,

vs. Duque III
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.
Health (DOH) has the significant responsibility to translate into
operational terms the standards set forth in Sections 5, 8, and 10 of
the Milk Code, by which the Inter-Agency Committee (IAC) shall
promotional, or other marketing materials.

Same; Same; Same; Same; Same;Same; The
total
effect
standards set out in Section 13 of the Revised Implementing Rules
and Regulations (RIRR) bind the Inter-Agency Committee (IAC) in
formulating its rules and regulations on advertising, promotion,
and marketing.It is pursuant to such responsibility that the
DOH correctly provided for Section 13 in the RIRR which reads as
follows: SECTION 13. Total Effect.Promotion of products
within the scope of this Code must be objective and should not
equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not
in any case undermine breast-milk or breastfeeding. The total
effect should not directly or indirectly suggest that buying their
product would produce better indi277
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vs. Duque III
viduals, or resulting in greater love, intelligence, ability,
harmony or in any manner bring better health to the baby or other
such exaggerated and unsubstantiated claim. Such standards bind
the IAC in formulating its rules and regulations on advertising,
promotion, and marketing. Through that single provision, the DOH
exercises control over the information content of advertising,
promotional and marketing materials on breastmilkvis-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.
scientific and factual matterswhat it prohibits is the involvement

of the manufacturer and distributor of the products covered by the
Code in activities for the promotion, education and production of
Information, Education and Communication (IEC) materials
regarding breastfeeding that are intended for women and children.
Section 22 of the RIRR does not prohibit the giving of
informationto 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
thedissemination
of
information to health professionals, as restrictedby the Milk

Code.
Same; Same; Same; Same; Same;It is the Department of
Health (DOH) which is principally responsible for the implementa278
Same; Same; Same; Same; Same;Same; Correct

information
as to infant feeding and nutrition is infused with public interest
and welfare.In Equi-Asia Placement, Inc. vs. Department of
Foreign Affairs, 502 SCRA 295 (2006), the Court held: x x x [T]his
Court had, in the past, accepted as sufficient standards the
following: public interest, justice and equity, public
convenience and welfare, and simplicity, economy and welfare.
In this case, correct information as to infant feeding and nutrition
is infused with public interest and welfare.
Same; Same; Same; Same; Same;Same; Section 22 of the
Revised Implementing Rules and Regulations (RIRR) does not
prohibit the giving of information to health professionals on
2
78
SUPREME COURT
REPORTS ANNOTATED

vs. Duque III
tion and enforcement of the provisions of said Codeit is
entirely up to the Department of Health (DOH) to decide which
108
entities to call upon or allow to be part of policymaking bodies on

breastfeeding.Section 4(i) of the RIRR provides that milk
companies and their representatives should not form part of any
policymaking body or entity in relation to the advancement of
breastfeeding. The Court finds nothing in said provisions which
contravenes the Milk Code. Note that under Section 12(b) of the
Milk Code, it is the DOH which shall be principally
responsible for the implementation and enforcement of the
provisions of said Code. It is entirely up to the DOH to decide
which entities to call upon or allow to be part of policymaking
bodies on breastfeeding. Therefore, the RIRRs prohibition on milk
companies participation in any policymaking body in relation to
the advancement of breastfeeding is in accord with the Milk Code.
Same; Same; Same; Same; Same;The Milk Code endows the
Department of Health (DOH) with the power to determine how
research or educational assistance may be given by milk companies
or under what conditions health workers may accept the assistance,
thus, Sections 9 and 10 of the Revised Implementing Rules and
Regulations (RIRR) imposing limitations on the kind of research
done or extent of assistance given by milk companies are completely
in accord with the Milk Code.Petitioner is also mistaken in
arguing that Section 22 of the RIRR prohibits milk companies from
giving reasearch assistance and continuing education to health
professionals.Section 22 of the RIRR does not pertain to
research assistance to or the continuing education ofhealth
professionals; rather, it deals with breastfeeding promotion
and education for women and children. Nothing in Section 22

of the RIRR prohibits milk companies from giving assistance for
research or continuing education to health professionals; hence,
petitioners argument against this particular provision must be
struck down. It is Sections 9 and 10 of the RIRR which govern
research
assistance.
Said
sections
of
the
RIRR
provide
thatresearch 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
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vs. Duque III
may accept the assistance. Thus, Sections 9 and 10 of the
RIRR imposing limitations on the kind of research done or extent
of assistance given by milk companies are completely in accord
with the Milk Code.
Same; Same; Same; Same; Same;The law does not proscribe
the refusal of donations made by manufacturers and distributors of
breastmilk substitutesthe Milk Code leaves it purely to the
discretion of the Department of Health (DOH) whether to request or
accept such donations.As to the RIRRs 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
109
manufacturers and distributors of breastmilk substitutes upon the

request or with the approval of the DOH. The law does not proscribe
the refusal of donations. The Milk Code leaves it purely to the
discretion of the DOH whether to request or accept such donations.
The DOH then appropriately exercised its discretion through
Section 51 of the RIRR which sets forth its policy not to request or
approve donations from manufacturers and distributors of
breastmilk substitutes. It was within the discretion of the DOH
when it provided in Section 52 of the RIRR that any donation from
milk companies not covered by the Code should be coursed through
the IAC which shall determine whether such donation should be
accepted or refused. As reasoned out by respondents, the DOH is
not mandated by the Milk Code to accept donations. For that
matter, no person or entity can be forced to accept a donation.
There is, therefore, no real inconsistency between the RIRR and
the law because the Milk Code does not prohibit the DOH from
refusing donations.
Same; Same; Administrative Penalties; Since neither the Milk
Code nor the Revised Administrative Code grants the Department
of Health (DOH) the authority to fix or impose administrative fines,
then the Department of Health (DOH) cannot provide for such fines
in the Revised Implementing Rules and Regulations (RIRR).In a
more recent case, Perez v. LPG Refillers Association of the
Philippines, Inc., 492 SCRA 638 (2006), the Court upheld the
Department of Energy (DOE) Circular No. 2000-06-10
implementing Batas
Pambansa (B.P.) Blg. 33.
The
circular
provided for fines for the commission of prohibited acts. The Court
found that nothing in the circular contravened the law because the
DOE was expressly authorized by B.P. Blg.33 and R.A. No. 7638 to
impose fines or penalties. In the
2
80
SUPREME COURT
REPORTS ANNOTATED

vs. Duque III
present case, neither the Milk Code nor the Revised
Administrative Code grants the DOH the authority to fix or impose
administrative fines. Thus, without any express grant of power to
fix or impose such fines, the DOH cannot provide for those fines in
the RIRR. In this regard, the DOH again exceeded its authority by
providing for such fines or sanctions in Section 46 of the RIRR.
Said provision is, therefore, null and void.
Same; Same; Same; Non-Delegation of Powers; The express
grant of rule-making power to an administrive agency necessarily
includes the power to amend, revise, alter, or repeal the same; It is a
standard provision in administrative rules that prior issuances of
administrative agencies that are inconsistent therewith are declared
repealed or modified.Section 57 of the RIRR does not provide for
the repeal of laws but only orders, issuances and rules and
regulations. Thus, said provision is valid as it is within the DOHs
rule-making power. An administrative agency like respondent
possesses quasi-legislative or rule-making power or the power to
make rules and regulations which results in delegated legislation
that is within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability and
separability of powers. Such express grant of rule-making power
necessarily includes the power to amend, revise, alter, or repeal the
280
110
same. This is to allow administrative agencies flexibility in

formulating and adjusting the details and manner by which they
are to implement the provisions of a law, in order to make it more
responsive to the times. Hence, it is a standard provision in
administrative rules that prior issuances of administrative
agencies that are inconsistent therewith are declared repealed or
modified.
Same; Same; Regulation of Trade;The framers of the
constitution were well aware that trade must be subjected to some
form of regulation for the public goodpublic interest must be
upheld over business interests.The framers of the constitution
were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over
business interests. In Pest Management Association of the
Philippines v. Fertilizer and Pesticide Authority, 516 SCRA 360
(2007), it was held thus: x x x Furthermore, as held in Association
of Philippine Coconut Desiccators v. Philippine Coconut
Authority,despite the fact that our present Constitution
enshrines free enterprise as a policy, it
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vs. Duque III
nonetheless reserves to the government the power to

intervene whenever necessary to promote the general
welfare. There can be no question that the unregulated use or
proliferation of pesticides would be hazardous to our environment.
Thus, in the aforecited case, the Court declared that free
enterprise
does
not
call
for
removal
of
protective
regulations. x x x It must beclearly explained and proven

by competent evidence just exactly how such protective
regulation would result in the restraint of trade. [Emphasis
and italics supplied]
Same; Same; Words and Phrases;Since all the regulatory
provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the
Revised Implementing Rules and Regulations (RIRR) providing for
just one term to encompass both entitiesthe definition of milk
company in the Revised Implementing Rules and Regulations
(RIRR) and the definitions of distributor and manufacturer
provided for under the Milk Code are practically the same.The
definition in the RIRR merely merged together under the term
milk company the entities defined separately under the Milk
Code as distributor and manufacturer. The RIRR also
enumerated in Section 5(w) the products manufactured or
distributed by an entity that would qualify it as a milk company,
whereas in the Milk Code, what is used is the phrase products
within the scope of this Code. Those are the only differences
between the definitions given in the Milk Code and the definition
as restated in the RIRR. Since all the regulatory provisions under
the Milk Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR providing for just
one term to encompass both entities. The definition of milk
company in the RIRR and the definitions of distributor and
111
manufacturer provided for under the Milk Code are practically

the same. The Court is not convinced that the definition of milk
company provided in the RIRR would bring about any change in
the treatment or regulation of distributors and manufacturers
of breastmilk substitutes, as defined under the Milk Code.
PUNO, C.J., Concurring and Separate Opinion:
Freedom of Expression;Commercial Speech; Breastmilk
Substitutes; The advertising and promotion of breastmilk
substitutes properly falls within the ambit of the term commercial
speechthat is,
282
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REPORTS ANNOTATED

vs. Duque III
speech that proposes an economic transactiona separate
category of speech which is not accorded the same level of protection
as that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection.I fully concur
with the well-written and comprehensive ponencia of my esteemed
colleague, Ms. Justice Ma. Alicia Austria-Martinez. I write to
elucidate another reason why theabsolute ban on the advertising
and promotion of breastmilk substitutes found under Sections 4(f)
and 11 of A.O. No. 2006-0012 (RIRR) should be struck down. The
advertising and promotion of breastmilk substitutes properly falls

within the ambit of the term commercial speechthat is, speech
that proproses an economic transaction. This is a separate
category of speech which is not accorded the same level of
protection as that given to other constitutionally guaranteed forms
of expression but is nonetheless entitled to protection.
Same; Same; Same; Four-Part
Analysis
for
Evaluating
Validity of Regulations of Commercial Speech.Central
Hudson provides a four-part analysis for evaluating the validity of
regulations of commercial speech. To begin with, the commercial
speech must concern lawful activity and not be misleading if it is
to be protected under the First Amendment. Next, the asserted
governmental interest must be substantial. If both of these
requirements are met, it must next be determined whether the
state regulation directly advances the governmental interest
asserted, andwhether it is not more extensive than is necessary to
serve that interest.
Same; Same; Same; The absolute ban on advertising
prescribed under Sections 4(f) and 11 of the Revised Implementing
Rules and Regulations (RIRR) is unduly restrictive and is more
than necessary to further the avowed governmental interest of
promoting the health of infants and young children.I proffer the
humble view that the absolute ban on advertising prescribed under
Sections 4(f) and 11 of the RIRR is unduly restrictive and is more
than necessaryto further the avowed governmental interest of
promoting the health of infants and young children. It ought to be
self-evident, for instance, that the dvertisement of such products
which are strictly informative cuts too deep on free speech. The
laudable concern of the respondent for the promotion of the health
of infants and young children cannot justify the absolute,
overarching ban.
112
AUSTRIA-MARTINEZ, J.:
283
VOL. 535, OCTOBER 9,

2007
283
Pharmaceutical and Health Care

Association of the Philippines vs.
Duque III
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The Court and all parties involved are in agreement that the
best nourishment for an infant is mothers 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
The facts are stated in the opinion of the Court.
Rules and Regulations of Executive Order No. 51,
Felicitas
Aquino
Arroyo, Ma.
Pilar
MartinezCaedo, Sandra Marie Olaso-Coronel and Grace Veronica C.
Reyes for petitioner.
International Agreements,
The Solicitor General for respondents.

Maria Shiela M. Bazar for Arugaan, Inc.
Bernas Law Offices for respondents-in-intervention and
Theresia Hontiveros-Baraquel and Loreta Ann P. Rosales.
Maria Paz Luna for herself and movant/intervenors Pia
Denise Ducay, et al.
Marvic M.V.F. Leonen for himself and movant/intervenors Karol Ruiz Austria, et al.
Otherwise Known
as
The
Milk
Code,
Penalizing
Relevant
Violations
Thereof, and for Other Purposes (RIRR). Petitioner posits

that the RIRR is not valid as it contains provisions that are
not constitutional and go beyond the law it is supposed to
implement.
284
284
SUPREME COURT
REPORTS ANNOTATED

Duque III
113
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of
Health (DOH). For purposes of herein petition, the DOH is
deemed impleaded as a co-respondent since respondents
issued the questioned RIRR in their capacity as officials of
said executive agency.
1
Executive Order No. 51 (Milk Code) was issued by

President Corazon Aquino on October 28, 1986 by virtue of
the legislative powers granted to the president under the
Freedom Constitution. One of the preambular clauses of the
Milk Code states that the law seeks to give effect to Article
11 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health
Assembly (WHA) in 1981. From 1982 to 2006, the WHA
adopted several Resolutions to the effect that breastfeeding
should be sup-
governments should seek, when necessary, the cooperation of WHO, UNICEF and
other agencies of the United Nations system. National policies and measures, including
laws and regulations, which are adopted to give effect to the principles and aim of this
Code should be publicly stated, and should apply on the same basis to all those
involved in the manufacture and marketing of products within the scope of this Code.
xxxx
285

2007
285
_______________
1
Section 11, Rule 3, 1997 Rules of Civil Procedure which provides:
Section 11. Misjoinder and non-joinder of parties.Neither misjoinder nor nonjoinder of parties is ground for dismissal of an action.Parties may be dropped or
added by order of the court on motion of any party or on its own initiative at
any stage of the actionand on such terms as are just. x x x (Emphasis supplied)
2
Article 11. Implementation and monitoring
11.1 Governments should take action to give effect to the principles and aim of this
Code, as appropriate to their social and legislative framework, including the adoption
of national legislation, regulations or other suitable measures. For this purpose,

Duque III
ported, promoted and protected, hence, it should be ensured
that nutrition and health claims are not permitted for
breastmilk substitutes.
In 1990, the Philippines ratified the International
Convention on the Rights of the Child. Article 24 of said
instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality,
and ensure that all segments of society, specially parents and
children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR
which was to take effect on July 7, 2006.
114
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.
Petition, Rollo, p. 12.
286
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SUPREME COURT
REPORTS ANNOTATED

Duque III
On August 15, 2006, the Court issued a Resolution

granting a TRO enjoining respondents from implementing
the questioned RIRR.
After the Comment and Reply had been filed, the Court
set the case for oral arguments on June 19, 2007. The Court
issued an Advisory (Guidance for Oral Arguments) dated
June 5, 2007, to wit:
The Court hereby sets the following issues:
1. 1.Whether or not petitioner is a real party-in-interest;
2. 2.Whether Administrative Order No. 2006-0012 or the
Revised Implementing Rules and Regulations (RIRR)
issued by the Department of Health (DOH) is not
constitutional;
1. 2.1.Whether the RIRR is in accord with the provisions of

Executive Order No. 51 (Milk Code);
2. 2.2.Whether pertinent international 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;
1
3. 2.3.Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR

violate the due process clause and are in restraint of trade;
and
4. 2.4.Whether Section 13 of the RIRR on Total Effect provides
sufficient standards.
____________
_______________
115
(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.
1
The parties filed their respective memoranda.

The petition is partly imbued with merit.

2007
287

Duque III
On the issue of petitioners 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:
4
The modern view is that an association has standing to complain

of injuries to its members. This view fuses the legal identity of an
association with that of its members.An association has
standing to file suit for its workers despite its lack of direct
interest if its members are affected by the action. An
organization has standing to assert the concerns of its
constituents.
xxxx
individual, company, entity or association on matters related to the

manpower recruitment industry, and to perform other acts and
activities necessary to accomplish the purposes embodied therein.
The respondent is, thus, the appropriate party to assert the
rights of its members, because it and its members are in
every practical sense identical. x x x The respondent
[association]
is
but
the
medium
through
which
its
individual members seek to make more effective the

expression of their voices and the redress of their
grievances. (Emphasis supplied)
5
which was reasserted in Purok Bagong Silang Association,

Inc. v. Yuipco, 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.
6
x x x We note that, under its Articles of Incorporation, the

respondent was organized x x x to act as the representative of any
_______________
4
G.R. No. 131719, May 25, 2004, 429 SCRA 81.
287
Herein petitioners Amended Articles of Incorporation

contains a similar provision just like inExecutive 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
116
public. Thus, as an organization, petitioner definitely has an

interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care
industry. Petitioner is duly authorized 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
8

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_______________
5
Id., at pp. 96-97.
G.R. No. 135092, May 4, 2006, 489 SCRA 382.
Id., at p. 396.
Annex G, Petitioners Memorandum dated July 19, 2007.
Annexes H, I, and J of Petitioners Memorandum executed by Wyeth
Philippines, Inc., Bristol Myers Squibb (Phils.), Inc., and Abbott Laboratories,
Inc., respectively.
on governmental action that would affect any of its industry

members, no matter how few or numerous they are. Hence,
petitioner, whose legal identity is deemed fused with its
members, should be considered as a real party-in-interest
which stands to be benefited or injured by any judgment in
the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international
instruments adverted to by respondents are part of the law of
the land.
Petitioner assails the RIRR for allegedly going beyond the
provisions of the Milk Code, thereby amending and
expanding the coverage of said law. The defense of the DOH
is that the RIRR implements not only the Milk Code but also
various international instruments 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.
10
288
288
SUPREME COURT
REPORTS ANNOTATED
The Court notes that the following international

instruments invoked by respondents, namely: (1) The United
117
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 wellbeing of families,
_______________
10
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 orincorporation. The transformation
11
a) The UN Convention on the Rights of the Child (CRC); b) the
International Code of Marketing Breastmilk Substitutes (ICMBS); c) the

International Covenant on Economic, Social and Cultural Rights (CSCR); d)
the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW); e) the Global Strategy for Infant and Young Child
Nutrition (Global Strategy); and f) various resolutions adopted by the World
Health Assembly.
method requires that an international law be transformed

into a domestic law through a constitutional mechanism such
as local legislation. The incorporation method applies when,
by mere constitutional declaration, international law is
deemed to have the force of domestic law.
12
Treaties
become
part
of
the
law
of
the
land
throughtransformation pursuant to Article VII, Section 21
289

2007
instruments do not contain specific provisions regarding the

use or marketing of breastmilk substitutes.
289

Duque III
and ensure that women are provided with services and
nutrition in connection with pregnancy and lactation. Said
of the Constitution which provides that [n]o treaty or

international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the
Senate. Thus, treaties or conventional international law
must go through a process prescribed by the Constitution for
it to be transformed into municipal law that can be applied to
domestic conflicts.
13
The ICMBS and WHA Resolutions are not treaties as they

have not been concurred in by at least two-thirds of all
members of the Senate as required under Section 21, Article
VII of the 1987 Constitution.
118
However, the ICMBS which was adopted by the WHA in

1981 had been transformed into domestic law through local
legislation, the Milk Code. Consequently, it is the Milk Code
_______________
11
Joaquin G. Bernas, S.J.,Constitutional Structure and Powers of
Government (Notes and Cases) Part I(2005).

12
Id.
13
Joaquin G. Bernas, S.J., An Introduction to Public International Law,
2002 Ed., p. 57.

290
290
SUPREME COURT
REPORTS ANNOTATED
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
Committee (IAC).
approved
by
the
Inter-Agency
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 incorporationmethod.
14
In Mijares v. Ranada, the Court held thus:

15

Duque III
that has the force and effect of law in this jurisdiction and not
the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the
ICMBS, but it is well to emphasize at this point that the
Code did not adopt the provision in the ICMBS absolutely
prohibiting advertising or other forms of promotion to
thegeneral public of products within the scope of
[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
apsychological element known as the opinion juris sive

necessitates(opinion as to law or necessity). Implicit in the latter
element is abelief that the
_______________
119
14
According to Fr. Bernas, the Austrian Constitution (Art. 9) and the
Constitution of the Federal Republic of Germany (Art. 25) also use the
incorporation method.
15
G.R. No. 139325, April 12, 2005, 455 SCRA 397.
in his dissenting opinion in the 1966 South West Africa Case, 1966
I.C.J. 296). OConnell holds that certain priniciples are part of
international law because they are basic to legal systems
generally and hence part of the jus gentium. These
principles, he believes, are established by a process of reasoning
based on the common identity of all legal systems. If there should
be doubt or disagreement, one must look to state practice and
determine whether the municipal law principle provides a just and
acceptable solution. x x x (Emphasis supplied)
291

2007
valid through all kinds of human societies. (Judge Tanaka
291
21
Fr. Joaquin G. Bernas defines customary international law as

follows:

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Custom or customary international law means a general and

consistentpractice of states followed by them from a sense of legal
practice in question is rendered obligatory by the existence

of a rule of law requiring it. (Emphasis supplied)
16
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 persons 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:
17
_______________
16
Id., at p. 421.
17
Merlin M. Magallona, Fundamentals of Public International Law, 2005
Ed., p. 526.
18
Id., at p. 525.
19
Government of Hong Kong Special Administrative Region v. Olalia, G.R.
18
19
20
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
No. 153675, April 19, 2007, 521 SCRA 470.

20
Taada v. Angara, 338 Phil. 546, 592;272 SCRA 18 (1997).
21
Louis
Henkin,
Richard
C.
Pugh,
Oscar
Schachter,
Hans
Smit, International Law, Cases and Materials, 2nd Ed., p. 96.
120
292
292
SUPREME COURT
REPORTS ANNOTATED
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

Duque III
obligation [opinio juris]. (Restatement) This statement contains
the two basic elements of custom: the material factor, that
is, how states behave, and the psychological or subjective
factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the
actual behavior of states. This includes several elements: duration,
consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More
important is the consistency and the generality of the practice. x x
x
xxxx
is
is obligatory,
what
makes
practice
an
international rule. Without it, practice is not law. (Italics and

22
Emphasis supplied)
Clearly, customary international law is deemed incorporated

into our domestic system.
23
WHA Resolutions have not been embodied in any local

legislation. Have they attained the status of customary law
and should they then be deemed incorporated as part of the
law of the land?
The World Health Organization (WHO) is one of the
international specialized agencies allied with the United
Nations (UN) by virtue of Article 57, in relation to Article
24
_______________
22
Supra note 13, at pp. 10-13.
23
Minucher v. Court of Appeals, 445 Phil. 250, 269; 397 SCRA 244, 259-
260 (2003).
24
Article
57.
The
various
specialized
agencies,
established
by
intergovernmental agreement and having wide international responsibilities,

as defined in their basic instruments, in economic, social,
293
121

2007
Such agencies thus brought into relationship with the United Nations are
293
hereinafter referred to as specialized agencies.

Article 63. The Economic and Social Council may enter into agreements
25
with any of the agencies referred to in Article 57, defining the terms on which

Duque III
the agency concerned shall be brought into relationship with the United
Nations. Such agreements shall be subject to approval by the General
Assembly.
63 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.
25
26
27
28
Regulations, along with conventions and agreements, duly

adopted by the WHA bind member states thus:
It may coordinate the activities of the specialized agencies through

consultation with and recommendations to such agencies and through
recommendations to the General Assembly and to the Members of the United
Nations.
26
determine the policies of the Organization x x x. (Emphasis supplied)

27
_______________
cultural, educational, health, and related fields, shall be brought into
relationship with the United Nations in accordance with the provisions of
Article 63.
Article 21. The Health Assembly shall have authority to adopt
regulations concerning: x x x
(e) advertising and labeling of biological, pharmaceutical and
similar
products
moving
in
international
commerce. (Emphasis
supplied)
28
Article 19. The Health Assembly shall have authority to adopt

conventions or agreements with respect to any matter within
Article 18. The functions of the Health Assembly shall be: (a) to
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)
294
294
SUPREME COURT
REPORTS ANNOTATED
122

Duque III
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 andsimilar 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)
295
123

2007
295

Duque III
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. Even the ICMBS itself was adopted as a mere
recommendation, as WHA Resolution No. 34.22 states:
29
The Thirty-Fourth World Health Assembly x x x adopts, in the
by which it would adopt the code in the form of a

recommendation rather than a regulation. x x x (Emphasis
supplied)
The legal value of WHA Resolutions as recommendations is

summarized in Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken
with respect to recommendations made to it by the Organization,
and with respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and

subsequent WHA Resolutions urging member states to
implement the ICMBS are merely recommendatory and
legally
_______________
29
See David Fidler, Developments Involving SARS, International Law, and
Infectious Disease Control at the Fifty-Sixth Meeting of the World Health

Assembly, June 2003, ASIL.
296
sense of Article 23 of the Constitution, the International Code

of Marketing of Breastmilk Substitutes annexed to the present
resolution. (Emphasis supplied)
296
SUPREME COURT
REPORTS ANNOTATED
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

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124
non-binding. Thus, unlike what has been done with the
6. (f)In Resolution No. 47.5 (May 9, 1994), the WHA urged member
states to ensure that there are no donations of supplies of
ICMBS whereby the legislature enacted most of the
breastmilk substitutes and other products covered by the ICMBS in
provisions into law which is the Milk Code, the
any part of the health care system.
subsequent WHA Resolutions, specifically providing

30
for exclusive breastfeeding from 0-6 months, continued
7. (g)In Resolution No. 49.15 (May 25, 1996), the WHA urged member
states to ensure that complementary foods are not marketed for or
used in ways that undermine exclusive and sustained breastfeeding.
_______________
30
In Resolution No. 34.22 (May 21, 1981), the WHA, acting under Article
297
23 of the WHO Constitution, adopted the ICBMS.

1. (a)In Resolution No. 35.26 (May 1982), the WHA urged member
states to implement the ICBMS as a minimum requirement.
2. (b)In Resolution No. 39.28 (May 16, 1986), the WHA requested the
WHO Director General to direct the attention of member states to
the fact that any food or drink given before complementary feeding
is nutritionally required may interfere with the initiation or

2007
297

Duque III
maintenance of breastfeeding and therefore should neither be

promoted nor encouraged for us by infants during this period.
3. (c)In Resolution No. 43.3 (May 14, 1990), the WHA urged member
states to protect and promote breastfeeding as an essential
component of nutrition policies so as to enable infants to be
exclusively breastfed during the first four to six months of life.
4. (d)In Resolution No. 45.34 (May 14, 1992), the WHA urged member
states to implement the targets of the Innocenti Declaration
specifically, to give effect to the ICMBS.
5. (e)In Resolution No. 46.7 (May 10, 1993), the WHA urged member
states to strive to eliminate under-nutrition, malnutrition and
nutritional deficiency among children.
breastfeeding
prohibiting
up
to
24
months,
advertisements
and
and
absolutely
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
125
1946 Statute of the International Court of Justice. It is,

however,
32
_______________
1. (h)In Resolution No. 54.2 (May 2002), the WHA, noting that
despite the fact that the International Code of Marketing of
Breastmilk Substitutes and relevant subsequent World Health
32
Article 38. 1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it,

298
298
SUPREME COURT
REPORTS ANNOTATED
Assembly resolutions state thatthere should be no advertising or

other forms of promotion of products within its scope, new modern
communication methods including electronic means, are currently
increasingly being used to promote such products; and conscious of
the need for the Codex Alimentarius Commission to take the

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International Code and subsequent relevant Health Assembly

resolutions into consideration in dealing with health claims in the
development of food standards and guidelines x x x, urged member
states to develop new approaches to protect, promote and support
exclusive breastfeeding for six months as a global public health
recommendation.
2. (i)In Resolution No. 55.25 (May 15, 2002), the WHA requested the
Codex Alimentarius Commission to ensure that labelling of
processed foods for infants and young children be consistent with
the WHO policy under the ICBMS.
an expression of non-binding norms, principles, and practices

that influence state behavior. Certain declarations and
resolutions of the UN General Assembly fall under this
category. The most notable is the UN Declaration of Human
Rights, which this Court has enforced in various cases,
specifically,Government of Hongkong Special Administrative
Region v. Olalia, Mejoff v. Director of Prisons, Mijares v.
Raada and Shangri-La International Hotel Management,
Ltd. v. Developers Group of Companies, Inc.
33
34
35
36
37
38
3. (j)In Resolution No. 58.32 (May 25, 2005), the WHA urged member
states to continue to protect and promote exclusive breastfeeding for
six months.
4. (k)In Resolution No. 59.21 (May 27, 2006), the WHA reiterated its
support for the Gobal strategy for Infant and Young Child Feeding.
31
David Fidler, supra note 29.
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. Other
international
39
126
organizations which have resorted to soft law include the

International

2007
299
_______________
shall apply: a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; b)
international custom, as evidence of a general practice accepted as law; c) the

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general principles of law recognized by civilized nations; d) subject to the

provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various na-tions, as subsidiary means for the
determination of rules of law.
40
33
Supra note 29.
34
Louis Henkin, et al., International Law, Cases and Materials, 2nd
Ed., supranote 21, at pp. 114-136.
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
35
Supra note 19.
36
90 Phil. 70 (1951).
provides an excellent example of the power of soft law in
37
Supra note 15.
distinguish
38
G.R. No. 159938, March 31, 2006, 486 SCRA 405.
39
Edward Kwakwa, Some Comments on Rulemaking at the World
international law binding on WHO member states, it

international relations.
Protection of Well-Known Marks, 2000 WIPO Recommendation

Trademark
Licenses,
and
2001
WIPO
Recommendation
Concerning Provisions on the Protection of Marks and other Industrial

Property Rights in Signs on the Internet.
299
binding rules
of
lawyers
international
typically
lawhard
that influence state behaviorsoft law. WHO has during
13, 2007, 12:33, citing the 1999 WIPO Resolution Concerning Provisions on
Concerning
International
lawfrom non-binding norms, principles, and practices
Intellectual Property Organization,www.law.duke.edu/shell/cite; September

the
Labor Organization and the Food and Agriculture

Organization (in the form of the Codex Alimentarius).
its existence generated many soft law norms, creating a soft

law regime in internationalgovernance 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.
127
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 countrys selfinterest x x x if this warning is heeded, the soft law in the SARS
and IHR Resolution could inform the development of general and
consistent state practice on infectious disease surveillance and
outbreak response, perhaps crystallizing eventually into customary
international law on infectious disease prevention and control.
41
In the Philippines, the executive department implemented

certain measures recommended by WHO to address the
outbreaks of SARS and Avian flu by issuing Executive Order
(E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on Febru_______________
40
Id.
41
Supra note 29.
300
300
SUPREME COURT
REPORTS ANNOTATED

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ary 2, 2004, delegating to various departments broad powers

to close down schools/establishments, conduct health
surveillance and monitoring, and ban importation of poultry
and agricultural products.
It must be emphasized that even under such an
international emergency, the duty of a state to implement the
IHR Resolution was still considered not binding or
enforceable, although said resolutions had great political
influence.
As previously discussed, for an international rule to be
considered as customary law, it must be established that
such rule is being followed by states because theyconsider 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
128
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
governments general poli-
the
framework
of
the
301

2007
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
301
advertisement or promotion of breastmilk substitutes

should be absolutely prohibited.

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cies
and
plans,
and issue
The national policy of protection, promotion and support of

breastfeeding cannot automatically be equated with a total
ban on advertising for breastmilk substitutes.
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
In view of the enactment of the Milk Code which does not

contain a total ban on the advertising and promotion of
breastmilk substitutes, but instead, specifically creates an
IAC which will regulate said advertising and promotion, it
follows that a total ban policy could be implemented
only pursuant to a lawamending the Milk Code passed by
129
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.

302
302
SUPREME COURT
REPORTS ANNOTATED

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Third, the Court will now determine whether the provisions
of the RIRR are in accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with
the Milk Code, petitioner alleges the following:
1. 1.The Milk Code limits its coverage to children 0-12 months
old, but the RIRR extended its coverage to young
children or those from ages two years old and beyond:
MILK CODE
WHEREAS, in
RIRR
Section
MILK CODE
RIRR
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;
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
130
MILK CODE
RIRR
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through
appropriate
marketing and
distribution.
SECTION
4(e). Infant
means a person
falling within the
age bracket of 012 months.
Section
5(ff).Young
Child means a
person from the
age ofmore than
twelve (12)
months up to the
age of three (3)
years (36
months).
1. 2.The Milk Code recognizes that infant formula may be a
proper and possible substitute for breastmilk in certain

instances; but the RIRR provides exclusive breast-
303

2007
303

1. feeding 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
forinfants 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
productsthrough
adequate,
consistent and
objective
information and
appropriate
regulation of the
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 infantsfrom
0 to six (6)
months.
b. There is no
substitute or
replacementfor
breastmilk.
131
MILK CODE
RIRR
marketing and
distribution of the
said substitutes,
supplements and
related products;
MILK CODE
RIRR
within the scope x x x

of this
Code shall be
printed,
published, distrib
1. 3.The Milk Code only regulates and does not impose

unreasonable requirements for advertising and promotion;
RIRR imposes an absolute ban on such activities for
breastmilk substitutes intended for infants from 0-24
months old or beyond, and forbids the use of health and
nutritional claims. Section 13 of the RIRR, which provides
for a total effect in the promotion of products within the
scope of the Code, is vague:
MILK CODE
RIRR
SECTION 6.
The General
Public and
Mothers.(a)
No advertising,
promotion or
other marketing
materials,
whether written,
audio or visual,
forproducts
Section 4.
Declaration of
Principles.
The following
are the
underlying
principles from
which the
revised rules and
regulations are
premised upon: x
304
304
SUPREME
COURT
REPORTS
ANNOTATED

Duque III
uted, exhibited
and
broadcastunles
s such
materials are
duly
authorized
and approved
by an interagency
f. Advertising,
promotions, or
sponsor-ships
of infant formula,
breastmilk
substitutes and
other related
products are
prohibited.
132
committee crea
ted herein
pursuant to the
applicable
standards
provided for in
this Code.
Section 11.
Prohibition.No
advertising,
promotions,
sponsorships, or
marketing
materials and
activities for
breastmilk
substitutes
intendedfor 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 breast-feeding.
The total effect
should not directly
or indirectly
133
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.
VOL. 535, OCTOBER 9, 2007
3
0
5
.The
following
shall not
be
included
in
advertisin
g,
promotion
al and
marketing
materials:
305
3
0
5

Duque III
Section
15.Conte
nt of
Materials
a. Texts,
pictures,
illustratio
ns or
informati
on which
discourag
e or tend
to
undermin
e the
benefits
or
superiorit
y of
134
3
0
5
breastfeed
- ing or
which
idealize
the use of
breastmil
k
substitute
s and milk
suppleme
nts. In
this
connectio
n, no
pictures
of babies
and
children
together
with their
mothers,
fathers,
siblings,
grandpare
nts, other
relatives
or
caregivers
(or yayas)
3
0
5
shall be
used in
any
advertise
ments for
infant
formula
and
breastmil
k
suppleme
nts;
b. The
term
humaniz
ed,
maternal
ized,
close to
mothers
milk or
similar
words in
describing
breastmil
k
substitute
135
3
0
5
s or milk
suppleme
nts;
any
phrase or
words
that
connotes
to
increase
emotional
,
intellectua
l abilities
of the
infant and
young
child and
other like
phrases
shall not
be
allowed.
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,
3
0
5
306
306
SUPREME COURT
REPORTS ANNOTATED
136

Duque III
1. 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
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
MILK CODE
RIRR
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
follow-ing
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 onthe
advice of a
health worker as
to the need for
its use and the
proper methods
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 appropria te
preparation, 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
137
MILK CODE
of use; and
(iv) instructions
for appropriate
preparation, and
a warning
against the
health hazards
of inappropriate
preparation.
RIRR
information that
powdered infant
formula may
contain
pathogenic
microorganisms
and must be
prepared and
used
appropriately.
307

2007
307

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1. 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
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.
138
MILK CODE
RIRR
professionals
regarding
products within
the scope of this
Code shall be
restricted
toscientific 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
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.
1. 6.The Milk Code permits milk manufacturers and

distributors to extend assistance in research and
continuing education of health professionals; RIRR
absolutely forbids the same.
308
308
SUPREME COURT
REPORTS
ANNOTATED

Duque III
MILK
CODE
RIRR
SECTIO
N 8.
Health
Workers.
(e)
Manufactu
rers and
distributor
s of
products
within the
scope of
this
Code may
assist in
the
research,
scholarshi
ps and
Section 4. Declaration
of Principles.
The following are the
underlying principles
from which the revised
rules and regulations
are prem-ised 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
manufact urer,
distributor, or
representatives of
products covered by
139
308
continuing
education,
of health
profession
als, in
accordanc
e with the
rules and
regulations
promulgat
ed by the
Ministry
of Health.
SUPREME COURT
REPORTS
ANNOTATED
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
activitiesand to avoid
the use of these venues
to market their brands
or company names.
SECTION 32.
Primary
Responsibility of
Health Work-ers.It
is the primary
responsibility of the
health workers to
promote, protect and
support breastfeeding
308
SUPREME COURT
REPORTS
ANNOTATED
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
309

2007
309

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shall be
permitted.
140
1. 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
otherw ise falling
MILK CODE
RIRR
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.
1. 8.The RIRR provides for administrative sanctions not

imposed by the Milk Code.
MILK CODE
RIRR
Section 46.
Administrative
Sanctions.The
141
MILK CODE
RIRR
following
administrative
sanctions shall be
imposed upon any
person, juridical or
natural, found to
have violated the
310
310
SUPREM
E COURT
REPORTS
ANNOTA
TED

Duque III
provisions
of the Code
and its
implementi
ng Rules
and
Regulation
s:
a) 1st
violation
Warning;
b) 2nd
violation
Administrative fine
of a
minimum
of Ten
Thousand
(P10,000.0
0) to Fifty
Thousand
(P50,000.0
0) 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
142
of Sixty
Thousand
(P60,000.0
0) 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
Registratio
n (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
143
violations
Administrative Fine
of One
Million
(P1,000,00
0.00)
Pesos, the
recall of
the
offending
product,
311
3
1
1

Duque III
cancellat
ion of
the CPR,
revocatio
n of the
License
to
Operate
(LTO) of
the
company
concerne
d,
includin
g the
blacklisting of
the
company
to be
furnishe
d the
Departm
ent of
Budget
and
Manage
ment
(DBM)
and the
Departm
ent of
Trade
and
Industry
(DTI);
f) An
additiona
l penalty
of Two
144
Thousan
d Five
Hundred
(P2,500.
00)
Pesos
per day
shall be
made for
every
day the
violation
continue
s after
having
received
the order
from the
IAC or
other
such
appropri
ate body,
notifying
and
penalizin
g the
company
for the
infractio
n.
For
purposes
of
determin
ing
whether
or not
there is
repeated
violation
, each
product
violation
belongin
g or
owned
by a
company
,
includin
g those
of their
subsidiar
ies, are
deemed
to be
violation
s of the
concerne
d milk
company
and shall
not be
based on
the
specific
145
violating
product
alone.
1. 9.The RIRR provides for repeal of existing laws to the
contrary.
The Court shall resolve the merits of the allegations of

petitionerseriatim.
1. Petitioner is mistaken in its claim that the Milk Codes
coverage is limited only to children 0-12 months old. Section
3 of the Milk Code states:
312
312
SUPREME COURT
REPORTS ANNOTATED

Duque III
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, bottlefed 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
theinfant. 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
146
children aged 0-12 months. In other words, breastmilk

substitutes may also be intended for young children more
than 12 months of age. Therefore, by regulating breastmilk
substitutes, the Milk
313

2007
313
The entirety of the RIRR, not merely truncated portions

thereof, must be considered and construed together. As held
in De Luna v. Pascual, [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.
44
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

Duque III
infor-mation. Section 8 of the RIRR also states that

information
_______________
Code also intends to protect and promote the nourishment of

children more than 12 months old.
Evidently, as long as what is being marketed falls within
the scope of the Milk Code as provided in Section 3, then it
can be subject to regulation pursuant to said law, even if the
product is to be used by children aged over 12 months. There
is, therefore, nothing objectionable with Sections 2 and
5(ff) of the RIRR.
42
promulgated to ensure the provision of safe and adequate nutrition for

infants and young children by the promotion, protection and support of
breastfeeding and by ensuring the proper use of breastmilk substitutes,
breastmilk supplements and related products when these are medically
indicated and only when necessary, on the basis of adequate information and
through appropriate marketing and distribution. (Italics supplied)
42
43
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.
Section 2. Purpose.These Revised Rules and Regulations are hereby
43
Section 5(ff). Young Child means a person from the age of more than
twelve (12) months up to the age of three (3) years (36 months). (Italics
supplied)
44
G.R. No. 144218, July 14, 2006, 495 SCRA 42, 55.
314
147
314
advertising materials on apparently non-toxic products like

breastmilk substitutes and supplements, is a relatively new
area for regulation by the DOH.
SUPREME COURT
REPORTS ANNOTATED
49
_______________

Duque III
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.
See pp. 19-21.
46
See p. 21.
47
Executive Order No. 292, made effective on November 23, 1989 by
Proclamation No. 495.

48
Jacobson v. Massachusetts, 197 US 11(1905); Beltran v. Secretary of
Health, G.R. No. 133640, November 25, 2005, 476 SCRA 168, 196; St. Lukess
Medical Center Employees Association-AFW v. National Labor Relations
Commission, G.R. No. 162053, March 7, 2007, 517 SCRA 677;Tablarin v.
3. The Court shall ascertain the merits of allegations

3 and 4 together as they are interlinked with each other.
45
45
46
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, and
as delegated in particular under the Milk Code.
Gutierrez, G.R. No. L-78164, July 31, 1987, 152 SCRA 730, 741;Pollution
Adjudication Board v. Court of Appeals, G.R. No. 93891, March 11, 1991,195
SCRA 112, 123-124; Rivera v. Campbell, 34 Phil. 348, 353-354 (1916);Lorenzo
v. Director of Health, 50 Phil. 595, 597 (1927).
49
As early as People v. Pomar, 46 Phil. 440, 445 (1924), we already noted
that advancing civilization is bringing within the

315
47
Health is a legitimate subject matter for regulation by the

DOH (and certain other administrative agencies) in exercise
of police powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to further
discuss it. However, health information, particularly

2007
315

48
148
breastfeeding and use of breast-milk

supplements and related products; and the
Duque III
As early as the 1917 Revised Administrative Code of the
Philippine Islands, 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 andespecially the inculcation of knowledge as
50
51
to the
proper
preventing
diseases.
and
care
of
infants and
combating
the
dangerous
methods
of
communicable
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. To that
52
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.
substitutes,
_______________
scope of police power of the state today things which were
not thought of as being with in such power yesterday.The development
of civilization, the rapidly increasing population, the growth of public opinion,
with [an increasing] desire on the part of the masses and of the government
to look after and care for the interests of the individuals of the state, have
brought within the police power of the state many questions for regulation
which formerly were not so considered.
50
Act No. 2711, approved on March 10, 1917.
51
Known then as Public Health Service.
52
Section 1, Chapter I, Title IX, Executive Order No. 292.
53
Id., at Section 3.
316
316
SUPREME COURT
REPORTS ANNOTATED
53
When it comes to information regarding nutrition of

infants and young children, however, the Milk Code
specifically delegated to the Ministry of Health (hereinafter
referred to as DOH) the power to ensure that there is
adequate, consistent and objective information on

Duque III
power to control such information. These are expressly
provided for in Sections 12 and 5(a), to wit:
149
SECTION 12. Implementation and Monitoring
SECTION 5. x x x
xxxx
(b) The Ministry of Health shall be principally responsible for
the implementation and enforcement of the provisions of this Code.
For this purpose, the Ministry of Health shall have the following
powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper
for the implementation of this Code and the accomplishment of its
purposes and objectives.
xxxx
(b) Informational and educational materials, whether written,

audio, or visual, dealing with the feeding of infants and intended to
reach pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative
effect on breast-feeding of introducing partial bottlefeeding; (4) the
difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured
industrially or
317
(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.

2007
317
SECTION 5. Information and Education

(a)
The
government
shall
ensure
that objective
and
consistentinformation is provided on infant feeding, for use by


Duque III
home-prepared. When
such
materials
contain
nutrition. (Emphasis supplied)
informationabout the use of infant formula, they shall
Further, DOH is authorized by the Milk Code to control the
health hazards ofinappropriate foods or feeding methods;
content of any information on breastmilk vis--vis breastmilk

substitutes, supplement and related products, in the
following manner:
include the social and financial implications of its use; the

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.
150
SECTION 8. Health Workers.
shall be printed, published, distributed, exhibited and broadcast
xxxx
agency committee created herein pursuant to the applicable
unless such materials are duly authorized and approved by an interstandards provided for in this Code.
(b) Information provided by manufacturers and distributors to

health professionals regarding products within the scope of this
Codeshall be restricted to scientific and factual matters, and
2. (b)Manufacturers and distributors shall not be permitted to give,

directly or indirectly, samples and supplies of products within the
scope of this Code or gifts of any sort to
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.
318
(a) Containers and/or labels shall be designed to provide the

necessary information about the appropriate use of the products,
and in such a way as not to discourage breastfeeding.
xxxx
(d) The term humanized, maternalized or similar terms
shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the

information and to whom such information may be
disseminated under Sections 6 through 9 of the Milk Code to
ensure
54
_______________
54
318
SECTION 6. The General Public and Mothers.

1. (a)No advertising, promotion or other marketing materials, whether
written, audio or visual, for products within the scope of this Code
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REPORTS ANNOTATED

Duque III
that the information that would reach pregnant women,
mothers of infants, and health professionals and workers in
_______________
1. any member of the general public, including members of their
families, to hospitals and other health institutions, as well as to
personnel within the health care system, save as otherwise provided
in this Code.
2. (c)There shall be no point-of-sale advertising, giving of samples or
any other promotion devices to induce sales directly to the
consumers at the retail level, such as special displays, discount
coupons, premiums, special sales, bonus and tie-in sales for the
151
products within the scope of this Code. This provision shall not
restrict the establishment of pricing policies and practices intended
2007
to provide products at lower prices on a long-term basis.

3. (d)Manufactures and distributors shall not distribute to pregnant
women or mothers of infants any gifts or articles or utensils which
may promote the use of breastmilk substitutes or bottlefeeding, nor

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shall any other groups, institutions or individuals distribute such

gifts, utensils or products to the general public and mothers.
4. (e)Marketing personnel shall be prohibited from advertising or
promoting in any other manner the products covered by this Code,
either directly or indirectly, to pregnant women or with mother of
infants, except as otherwise provided by this Code.
5. (f)Nothing
herein
contained
shall
prevent
ing is equivalent or superior to breastfeeding.

_______________
donations
from
manufacturers and distributors or products within the scope of this

Code upon request by or with the approval of the Ministry of
Health.
1. preclude the dissemination of information to health professionals as

provided in Section 8(b).
2. (c)Facilities of the health care system shall not be used for the display
of products within the scope of this Code, or for placards or posters
SECTION 7. Health Care System.
concerning such products.
1. (a)The Ministry of Health shall take appropriate measures to

encourage and promote breastfeeding. It shall provide objective and
consistent information, training and advice to health workers on
infant nutrition, and on their obligations under this Code.
2. (b)No facility of the health care system shall be used for the purpose
of promoting infant formula or other products within the scope of
this Code. This Code does not, however,
3. (d)The use by the health care system of professional service

representatives, mothercraft nurses or similar personnel, provided
or paid for by manufacturers or distributors, shall not be permitted.
4. (e)In health education classes for mothers and the general public,
health workers and community workers shall emphasize the
hazards and risks of the improper use of breast-milk substitutes
particularly infant formula. Feeding with infant formula shall be
demonstrated only to mothers who may not be able to breastfeed for
319
the health care system is restricted to scientific and factual

matters and shall not imply or create a belief that bottlefeed-
medical or other legitimate reasons.
319
152
1. (a)Health workers shall encourage and promote breast-feeding and

shall make themselves familiar with objectives and consistent
information on maternal and infant nutrition, and with their
responsibilities under this Code.
2. (b)Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters and such information
shall not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding. It shall also include the information
specified in Section 5(b).
3. (c)No financial or material inducements to promote products within
the scope of this Code shall be offered by manufacturers or
distributors to health workers or members of their families, nor
shall these be accepted by the health workers or members of their
families, except as otherwise provided in Section 8(e).
4. (d)Samples of infant formula or other products within the scope of
this Code, or of equipment or utensils for their
320
320
SUPREME COURT
REPORTS ANNOTATED
-visbreastmilk 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.
_______________
1. preparation or use, shall not be provided to health workers except
when necessary for the purpose of professional evaluation or

Duque III
It bears emphasis, however, that the DOHs power under the
Milk Code to control information regarding breastmilk vis-
research in accordance with the rules and regulations promulgated

by the Ministry of Health. No health workers shall give samples of
infant formula to pregnant women and mothers of infants or
members of their families.
2. (e)Manufacturers and distributors of products within the scope of this
Code may assist in the research, scholarships and continuing
153
4. e)Section 6(a) in relation to Section 12(a) which creates and

empowers the IAC to review and examine advertising,
promotion, and other marketing materials;
education, of health professionals, in accordance with the rules and

regulations promulgated by the Ministry of Health.
SECTION 9. Persons employed by Manufacturers and Distributors.
Personnel employed in marketing products within the scope of this Code shall
5. f)Section 8(b) which states that milk companies may provide

information to health professionals but such information
should be restricted to factual and scientific matters and
shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding; and
not, as part of their job responsibilities, perform educational functions in

relation to pregnant women or mothers of infants.
321

2007
6. g)Section 10 which provides that containers or labels should

not contain information that would discourage breastfeeding and idealize the use of infant formula.
321

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It is in this context that the Court now examines the assailed

provisions of the RIRR regarding labeling and advertising.
Sections 13 on total effect and 26 of Rule VII of the
RIRR contain some labeling requirements, specifically: a)
that there be a statement that there is no substitute to
breastmilk; and b) that there be a statement that powdered
infant formula may contain pathogenic microorganisms and
must be
55
1. b)Section 3 which specifically states that the Code applies to

the marketing of and practices related to breastmilk
substitutes, including infant formula, and to information
concerning their use;
2. c)Section 5(a) which provides that the government shall
ensure that objective and consistent information is
provided on infant feeding;
3. d)Section 5(b) which provides that written, audio or visual
informational and educational materials shall not use any
picture or text which may idealize the use of breastmilk
substitutes and should include information on the health
hazards of unnecessary or improper use of said product;
56
_______________
55
See p. 20.
56
See p. 21.
322
154
and Section 10(d) which bars the use on containers and

labels of the terms humanized, maternalized, or similar
terms.
59
322
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REPORTS ANNOTATED

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prepared and used appropriately. Section 16 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.
57
These requirements and limitations are consistent with

the provisions of Section 8 of the Milk Code, to wit:
xxxx
Code shall be restricted to scientific and factual matters, and
such information shall not imply or create a belief that bottlefeeding isequivalent or superior to breastfeeding. It shall also
information
specified
It may be argued that Section 8 of the Milk Code refers

only to information given to health workers regarding breast_______________
57
SECTION 16. All health and nutrition claims for products within the
scope of the Code are absolutely prohibited. For this purpose, any phrase or
words that connotes to increase emotional, intellectual abilities of the infant
and young child and other like phrases shall not be allowed.
SECTION 8. Health workers
include the
supplied)
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.
in Section
5. (Emphasis
58
58
See p. 30.
59
xxxx
(d) The term humanized, maternalized or similar terms shall not be used.
323

2007
323
155
_______________

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60
SECTION 2. Aim of the Code.The aim of the Code is to contribute to
the provision of safe and adequate nutrition for infants by the protection and
promotion of breastfeeding and by ensuring the proper use of breastmilk
milk substitutes, not to containers and labels thereof.

However, such restrictive application of Section 8(b) will
result in the absurd situation in which milk companies and
distributors are forbidden to claim to health workers that
their products are substitutes or equivalents of breastmilk,
and yet be allowed to display on the containers and labels of
their products the exact opposite message. That askewed
interpretation of the Milk Code is precisely what Section 5(a)
thereof seeks to avoid by mandating that all information
regarding
breast-milk vis--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 2 of the Milk Code.
substitutes and breastmilk supplements when these are necessary, on the

basis of adequate information and through appropriate marketing and
distribution.
61
SECTION
26. Content.Each
container/label
shall
contain
such
message, in both Filipino and English languages, and which message cannot
be readily separated therefrom, relative the follow-ing points:
xxxx
(f) The health hazards of unnecessary or improper use of infant formula
and other related products including information that
324
324
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REPORTS ANNOTATED

Duque III
60
Section 26(f) of the RIRR is an equally reasonable

labeling requirement. It implements Section 5(b) of the Milk
Code which reads:
SECTION 5. x x x
61
xxxx
156

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)
pathogenic microorganisms is in accordance with Section 5(b)

of the Milk Code.
_______________
powdered infant formula may contain pathogenic microorganisms and
must be prepared and used appropriately.
62
TSN of the hearing of June 19, 2007, pp. 114-120.
325

2007
325
The label of a product containsinformation about said

product intended for the buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the
RIRR merely adds a fair warning about the likelihood of
pathogenic microorganisms being present in infant formula
and other related products when these are prepared and used
inappropriately.
Petitioners counsel has admitted during the hearing on
June 19, 2007 that formula milk is prone to contaminations
and there is as yet no technology that allows production of
powdered infant formula that eliminates all forms of
contamination.
62
Ineluctably, the requirement under Section 26(f) of the

RIRR for the label to contain the message regarding health
hazards including the possibility of contamination with

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The authority of DOH to control information regarding
breastmilkvis--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
157
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 Committee shall have the following powers and functions:

1. (1)To review and examine all advertising, promotion or
other marketing materials, whether written, audio or
visual, on products within the scope of this Code;
the Milk Code invested regulatory authority over advertising,

promotional and marketing materials to an IAC, thus:
2. (2)To approve or disapprove, delete objectionable portions

from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or
other marketing materials, whether written, audio or
visual, on products within the scope of this Code;
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:
326
Minister of
Health ..........................................
................
Chairma
n
Minister of Trade and

Industry .......................................
Member
Minister of
Justice .........................................
.................
Member
Minister of Social Services and

Development ..................
Member
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REPORTS ANNOTATED

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1. (3)To prescribe the internal and operational procedure for
the exercise of its powers and functions as well as the
performance of its duties and responsibilities; and
2. (4)To promulgate such rules and regulations as are
necessary or proper for the implementation of
Section 6(a) of this Code. x x x (Emphasis supplied)
The members may designate their duly

representative to every meeting of the Committee.
authorized
However, Section 11 of the RIRR, to wit:

158
SECTION
11. Prohibition.No
advertising,
promotions,
sponsorships, or marketing materials and activities for breastmilk
substitutes intended for infants and young children up to twentyfour (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 RIRRs declaration of principle under Section 4(f), to
wit:
SECTION 4. Declaration of Principles.
xxxx
(f) Advertising, promotions, or sponsorships of infant formula,
breastmilk substitutes and other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to

itself not only the regulatory authority given to the IAC but
also imposed absolute prohibition on advertising, promotion,
and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the
requirement of the Milk Code in Section 6 thereof for prior
approval by IAC of all advertising, marketing and
promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the

authority of IAC, and repeatedly insisted, during the oral
argu327

2007
327

Duque III
ments on June 19, 2007, that the prohibition under Section
11 is not actually operational, viz.:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by
Petitioner is whether or not there is an absolute prohibition on
advertising making AO 2006-12 unconstitutional. We maintained that
what AO 2006-12 provides is not an absolute prohibition because Section
11 while it states and it is entitled prohibition it states that no
advertising, promotion, sponsorship or marketing materials and activities
for breast milk substitutes intended for infants and young children up to
24 months shall be allowed because this is the standard they tend to
convey or give subliminal messages or impression undermine that
breastmilk or breastfeeding x x x.
159
We have to read Section 11 together with the other Sections because

the other Section, Section 12, provides for the inter agency committee
that is empowered to process and evaluate all the advertising and
promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and
manufacture, it simply regulates the advertisement and the promotions of
breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken
together with the provision on the InterAgency Committee that processes
and evaluates because there may be some information dissemination that
are straight forward information dissemination. What the AO 2006 is
trying to prevent is any material that will undermine the practice of
breastfeeding, Your Honor.
xxxx

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and Regulations regarding the Advertising, Promotion and Marketing of
Breastmilk Substitutes?

Your Honor, please, it is provided that the InterAgency Committee, Your
Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:

x x x Dont 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?
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority
or power to promulgate Rules
Your Honor, please, first we would like to stress that there is no total
absolute ban. Second, the InterAgency Committee is under the
Department of Health, Your Honor.
328
xxxx
328
SUPREME COURT
REPORTS ANNOTATED
ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute
ban on advertising of breastmilk substitutes in the Revised Rules?
160
Yes, your Honor.
So in short, will you please clarify theres no absolute ban on

advertisement regarding milk substitute regarding infants two (2) years

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?

Its not an absolute ban, Your Honor, because we have the Inter-Agency
Committee that can evaluate some advertising and promotional
materials, subject to the standards that we have stated earlier, which are
they should not undermine breastfeeding, Your Honor.
xxxx
329

2007
329

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

We can proudly say that the general rule is that there is a prohibition,
however, we take exceptions and standards have been set. One of which is
that, the InterAgency Committee can allow if the advertising and
promotions will not undermine breastmilk and breastfeed-ing, Your
Honor.
63
Sections 11 and 4(f) of the RIRR are clearly violative of the

Milk Code.
However, although it is the IAC which is authorized to
promulgate rules and regulations for the approval or
rejection of advertising, promotional, or other marketing
materials under Section 12(a) of the Milk Code, said
provision must be related to Section 6 thereof which in turn
provides that the rules and regulations must be pursuant to
the applicable standards provided for in this Code. Said
standards are set forth in Sections 5(b), 8(b), and 10 of the
Code, which, at the risk of being repetitious, and for easy
reference, are quoted hereunder:
SECTION 5. Information and Education.
xxxx
161

audio, or visual, dealing with the feeding of infants and intended
_______________
63
TSN of June 19, 2007 hearing, pp. 193-194, 198, 231, 237-240, 295-300.
330
330
SUPREME COURT
REPORTS ANNOTATED

Duque III
to reach pregnant women and mothers of infants, shall include
clear information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative
effect on breast-feeding of introducing partial bottlefeeding; (4) the
difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of
inappropriate foods of feeding methods; and, in particular, the
health hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk
substitutes.
xxxx
xxxx
Code shall be restricted to scientific and factual matters and such
information shall not imply or create a belief that bottle feeding is
equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5(b).
xxxx
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the products,
and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily
readable and understandable message in Pilipino or English
printed on it, or on a label, which message can not readily become
separated from it, and which shall include the following points:
1. (i) the words Important Notice or their equivalent;
2. (ii)a statement of the superiority of breastfeeding;
3. (iii)a statement that the product shall be used only on the
advice of a health worker as to the need for its use and the
proper methods of use; and
162
Thus, the DOH has the significant responsibility to
331
translate into operational terms the standards set

2007
forth in Sections 5, 8, and 10 of the Milk Code, by
331
which the IAC shall screen advertising, promotional,

or other marketing materials.

Duque III
It is pursuant to such responsibility that the DOH

correctly provided for Section 13 in the RIRR which reads as
follows:
1. (iv)instructions for appropriate preparation, and a warning

against the health hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the

principal implementing agency for the enforcement of the
provisions of the Code. In relation to such responsibility of
the DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education.
(a)
The
government
shall
ensure
that objective
and
consistentinformation is provided on infant feeding, for use by

nutrition. (Emphasis supplied)
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--vis breastmilk
substi332
332
SUPREME COURT
163
Contrary to petitioners claim, Section 22 of the RIRR does

not prohibit the giving of information to health profes-
REPORTS ANNOTATED
_______________

Duque III
tutes, supplements and other related products. It also sets a
viable standard against which the IAC may screen such
materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign
Affairs, the Court held:
64
x x x [T]his Court had, in the past, accepted as sufficient

standards the following: public interest, justice and equity,
public convenience and welfare, and simplicity, economy and
welfare.
65
In this case, correct information as to infant feeding and

nutrition is infused with public interest and welfare.
4. With regard to activities for dissemination of
information to health professionals, the Court also finds that
there is no inconsistency between the provisions of the Milk
Code and the RIRR. Section 7(b) of the Milk Code, in
relation to Section 8(b) of the same Code, allows
dissemination of information to health professionals but
suchinformation is restricted to scientific and factual
64
G.R. No. 152214, September 19, 2006,502 SCRA 295.
65
Id., at p. 314.
66
SECTION 7. Health Care System.
xxxx
(b) No facility of the health care system shall be used for the purpose of
promoting infant formula or other products within the scope of this Code.
This Code does not, however, preclude the dissemination of information to
health professionals as provided in Section 8(b).
67
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be
restricted toscientific and factual matters and such information shall not
imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section 5(b).
333
66
67

2007
333
matters.
164
12(b) of the Milk Code, it is the DOH which shall be

Duque III
principally
_______________
sionals on scientific and factual matters. What it

prohibits is the involvement of the manufacturer and
distributor of the products covered by the Code in activities
for the promotion, education and production of Information,
Education and Communication (IEC) materials regarding
breastfeeding that areintended for women and children.
Said provision cannot be construed to encompass even
the dissemination
of
information to
professionals, as restricted by the Milk Code.
health
68
xxxx
(e) Manufacturers and distributors of products within the scope of this
Code may assist in the research, scholarships and continuing education, of
health professionals, in accordance with the rules and regulations
promulgated by the Ministry of Health.
69
SECTION
4. Declaration
of
Principles.The
following
are
the
underlying principles from which the revised rules and regulations are
premised upon:
5. Next, petitioner alleges that Section 8(e) 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.
68
xxxx
(i) Milk companies, and their representatives, should not form part of any
policymaking body or entity in relation to the advancement of breastfeeding.
334
69
Section 4(i) of the RIRR provides that milk companies and

their representatives should not form part of any
policymaking body or entity in relation to the advancement of
breast-feeding. The Court finds nothing in said provisions
which contravenes the Milk Code. Note that under Section
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REPORTS ANNOTATED

Duque III
165
responsible for the implementation and enforcement of the
70
SECTION 22. No manufacturer, distributor, or representatives of
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 RIRRs prohibition on
milk companies participation in any policymaking body in
relation to the advancement of breastfeeding is in accord with
the Milk Code.
products covered by the Code shall be allowed to conduct or be involved in any
Petitioner is also mistaken in arguing that Section 22 of

the RIRR prohibits milk companies from giving reasearch
assistance
and
continuing
education to
health
ensure that research conducted for public policy purposes, relating to infant
professionals. Section 22 of the RIRR does not pertain to
pany/person funding the research. In any event, such research and its
70
research assistance to or the continuing education

ofhealth professionals; rather, it deals with breastfeeding
promotion and education for women and children.

Nothing in Section 22 of the RIRR prohibits milk companies
from giving assistance for research or continuing education to
health professionals; hence, petitioners argument against
this particular provision must be struck down.
It is Sections 9 and 10 of the RIRR which govern
research assistance. Said sections of the RIRR provide that
71
72
activity on breastfeeding promotion, education and production of Information,

Education and Communication (IEC) materials on breastfeeding, holding of
or participating as speakers in classes or seminars for women and children
activities and to avoid the use of these venues to market their brands or
company names.
71
SECTION 9. Research, Ethics Committee, Purpose.The DOH shall
and young child feeding should, at all times, be free form any commercial
influence/bias; accordingly, the health worker or researcher involved in such
must disclose any actual or potential conflict of interest with the comfindings shall be subjected to independent peer review. x x x.
72
SECTION
10. Public
Disclosure.For
transparency
purposes,
disclosure and/or disclaimer of the sponsoring company should be done by the

company itself, health worker, researcher involved through verbal declaration
during the public presentation of the research and in print upon publication.
335

2007
335
_______________

Duque III
research
assistance
for
health
workers
and
researchers may be allowed upon approval of an ethics
166
committee, and with certain disclosure requirements

imposed on the milk company and on the recipient of
the research award.
The Milk Code endows the DOH with the power to

determine how such research or educational assistance may
be given by milk companies or under what conditions health
workers may accept the assistance. Thus, Sections 9 and 10
of the RIRR imposing limitations on the kind of research
done or extent of assistance given by milk companies are
completely in accord with the Milk Code.
Petitioner complains that Section 32 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.
73
74
6. As to the RIRRs prohibition on donations, said

provisions are also consistent with the Milk Code. Section 6(f)
of the Milk Code provides that donations may be made by
manufacturers
and
distributors
of
breastmilk
substitutes upon the request or with the approval of the
DOH. The law does not proscribe the refusal of donations.

The Milk Code leaves it purely to the discretion of the DOH
whether to request or accept such donations. The DOH then
appropriately exercised
_______________
73
SECTION 32. Primary Responsibility of Health Workers.It is the
primary responsibility of the health workers to promote, protect and support

breastfeeding and appropriate infant and young child feeding. Part of this
responsibility is to continuously update their knowledge and skills on
breastfeeding. No assistance, support, logistics or training from milk
companies shall be permitted.
74
Supra note 68.
336
336
SUPREME COURT
REPORTS ANNOTATED

Duque III
167
its discretion through Section 51 of the RIRR which sets forth

its policy not to request or approve donations from
manufacturers and distributors of breastmilk substitutes.
75
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.
Respondents reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc. 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) wasexpressly granted by the law
76
(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 CABs
Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of
the Philippines, Inc., the Court upheld the Department of
77
7. With regard to Section 46 of the RIRR providing for

administrative sanctions that are not found in the Milk Code,
the Court upholds petitioners objection thereto.
_______________
75
SECTION 51. Donations Within the Scope of This Code.Donations of
products, materials, defined and covered under the Milk Code and these
implementing rules and regulations, shall be strictly prohibited.
76
159-A Phil. 142; 63 SCRA 524 (1975).
77
G.R. No. 159149, June 26, 2006, 492 SCRA 638.
337

2007
337
168
1. (a)Any person who violates the provisions of this Code or

Duque III
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.
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:
2. (b)Any license, permit or authority issued by any

government agency to any health worker, distributor,
manufacturer, or marketing firm or personnel for the
practice of their profession or occupation, or for the pursuit
of their business, may, upon recommendation of the
Ministry of Health, be suspended or revoked in the event
of repeated violations of this Code, or of the rules and
regulations issued pursuant to this Code. (Emphasis
supplied)
338
338
SUPREME COURT
REPORTS ANNOTATED

Duque III
SECTION 13. Sanctions.

169
8. Petitioners claim that Section 57 of the RIRR repeals

existinglaws that are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause.All orders, issuances, and rules
and regulations or parts thereof inconsistent with these revised
rules and implementing regulations are hereby repealed or
modified accordingly.
Section 57 of the RIRR does not provide for the repeal

of laws but only orders, issuances and rules and regulations.
Thus, said provision is valid as it is within the DOHs rulemaking power.
An administrative agency like respondent possesses quasilegislative or rule-making power or the power to make rules
and regulations which results in delegated legislation that is
within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability
and separability of powers. Such express grant of rulemaking power necessarily includes the power to amend,
revise, alter, or repeal the same. This is to allow
administrative agencies flexibility in formulating and
adjusting the details and manner by which they are to
implement the provisions of a law, in order to make it more
responsive to the times. Hence, it is a standard provision in
administrative rules that prior issu-ances of administrative
agencies that are inconsistent therewith are declared
repealed or modified.
78
79
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond

the authority of the DOH to promulgate and in contravention
of the Milk Code and, therefore, null and void. The rest of the
provisions of the RIRR are in consonance with the Milk Code.
_______________
78
Smart
Communications,
Inc.
v.
National
Telecommunications
Commission,456 Phil. 145, 155-156; 408 SCRA 678, 686 (2003).

79
Yazaki Torres Manufacturing, Inc. v. Court of Appeals, G.R. No. 130584,
June 27, 2006, 493 SCRA 86, 97.

80
Supra note 78, at p. 156; pp. 686-687.
339

2007
339

Duque III
Lastly, petitioner makes a catch-all allegation that:
80
x x x [T]he questioned RIRR sought to be implemented by the

Respondents is unnecessary and oppressive, and is offensive
to the due process clause of the Constitution, insofar as the
same is in restraint of trade and because a provision therein is
inadequate to provide the public with a comprehensible basis to
170
determine
whether
or
not
violation. (Emphasis supplied)
they
have
committed
81
Petitioner refers to Sections 4(f), 4(i), 5(w), 11, 22, 32,

82
83
84
85
86
87
_______________
81
Petitioners Memorandum.
82
SECTION
4. Declaration
substitutes and/or replacements, as well as related products covered within

the scope of this Code.
86
Supra note 70.
87
Supra note 73.
340
of
Principles.The
following
are
the
underlying principles from which the revised rules and regulations are
340
premised upon:
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk
substitutes and other related products are prohibited.
83
SECTION 4. Declaration of Principles.x x x (i) Milk companies, and
their representatives, should not form part of any policymaking body or entity
in relation to the advancement of breastfeeding.
84
SECTION 5. x x x x (w) Milk Company shall refer to the owner,

Duque III
46, and 52 as the provisions that suppress the trade of milk
and, thus, violate the due process clause of the Constitution.
88
description of such nature, including their representatives who promote or

otherwise advance their commercial interests in marketing those products; x
x x.
85
SECTION 11. Prohibition.No advertising, promotions, sponsorships,
or marketing materials and activities for breastmilk substitutes intended for

infants and young children up to twenty-four (24) months, shall be allowed,
because they tend to convey or give subliminal messages or impressions that
undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk
89
_______________
manufacturer, distributor, of infant formula, follow-up milk, milk formula,

milk supplement, breastmilk substitute or replacement, or by any other
SUPREME COURT
REPORTS ANNOTATED
88
SECTION 46. Administrative Sanctions.The following administrative
sanctions shall be imposed upon any person, juridical or natural, found to

have violated the provisions of the Code and its implementing Rules and
Regulations:
1. a)1st violationWarning;
2. b)2nd violationAdministrative 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;
171
3. (c)3rd violationAdministrative 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

2007
341
violation, and in addition thereto, the recall of the offending

product, and suspension of the Certificate of Product Registration
(CPR);
4. (d)4th violationAdministrative Fine of a minimum of Two Hundred

Duque III
Thousand (P200,000.00) to Five Hundred (P500,000.00) Thousand

Pesos, depending on the gravity and extent of the violation; and in
addition thereto, the recall of the product, revocation of the CPR,
suspension of the License to Operate (LTO) for one year;
5. (e)5th and succeeding repeatedAdministrative Fine of One Million
(P1,000,000.00)
Pesos,
the
recall
of
the
offending
product,
cancellation of the CPR, revocation of the License to Operate (LTO)

of the company concerned, including the blacklisting of the company
to be furnished the Department of Budget and Management (DBM)
and the Department of Trade and Industry (DTI);
6. (f)An additional penalty of Two Thou-sand Five Hundred (P2,500.00)
Pesos per day shall be made for every day the violation continues
after having received the order from the IAC or other such
appropriate body, notifying and penalizing the company for the
infraction. For purposes of determining whether or not there is 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.
89
SECTION 52. Other Donations By Milk Companies Not Covered by this
Code.Donations of products, equipments, and the like, not otherwise falling

within the scope of this Code or these
341
The framers of the constitution were well aware that trade

must be subjected to some form of regulation for the public
good. Public interest must be upheld over business
interests. In Pest Management Association of the Philippines
v. Fertilizer and Pesticide Authority, it was held thus:
90
91
x x x Furthermore, as held inAssociation of Philippine Coconut

Desiccators v. Philippine Coconut Authority, despite the fact that
our present Constitution enshrines free enterprise as a
policy, it nonetheless reserves to the government the power
to intervene whenever necessary to promote the general
welfare.There can be no question that the unregulated use or
proliferation of pesticides would be hazardous to our environment.
Thus, in the aforecited case, the Court declared that free
enterprise
does
not
call
for
removal
of
protective
regulations. x x x It must be clearly explained and proven

by competent evidence just exactly how such protective
regulation would result in the restraint of trade. [Emphasis
and italics supplied]
In this case, petitioner failed to show that the proscription of

milk manufacturers participation in any policymaking body
172
(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:
_______________
On the other hand, Section 4 of the Milk Code provides:
Rules, given by milk companies and their agents, representatives,

whether in kind or in cash, may only be coursed through the Inter Agency
Committee (IAC), which shall determine whether such donation be accepted
or otherwise.
90
Eastern Assurance & Surety Corporation v. Land Transportation
Franchising and Regulatory Board, 459 Phil. 395, 399; 413 SCRA 75, 85
(2003).
91
G.R. No. 156041, February 21, 2007,516 SCRA 360.
342
342
SUPREME COURT
REPORTS ANNOTATED

Duque III
SECTION 5. x x x. (w) Milk Company shall refer to the owner,

manufacturer, distributor of infant formula, follow-up milk, milk
formula, milk supplement, breastmilk substitute or replacement,
or by any other description of such nature, including their
representatives who promote or otherwise advance their
commercial interests in marketing those products;
(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
manufacturers sales agent, representative, national distributor or
broker.
xxxx
(j) Manufacturer means a corporation or other entity in the
public or private sector engaged in the business or function
(whether directly or indirectly or through an agent or and entity
controlled by or under contract with it) of manufacturing a
products within the scope of this Code.
Notably, the definition in the RIRR merely merged together

under the term milk company the entities defined
separately under the Milk Code as distributor and
manufacturer. The RIRR also enumerated in Section 5(w)
173
the products manufactured or distributed by an entity that

would qualify it as a milk company, whereas in the Milk
Code, what is used is the phrase products within the scope
of this Code. Those are the only differences between the
definitions given in the Milk Code and the definition as restated in the RIRR.
Since all the regulatory provisions under the Milk Code
apply equally to both manufacturers and distributors, the
Court sees no harm in the RIRR providing for just one term
to
343

2007
343

Duque III
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. 20060012 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.
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
Puno (C.J.), Quisumbing,Sandoval-Gutierrez, Carpi

o,Corona, Carpio-Morales, Tinga,Chico-Nazario, Garcia, Vela
sco, Jr. and Reyes, JJ., concur.
Ynares-Santiago andAzcuna, JJ., On Official Leave.
Nachura, J., No Part.
174
A look at the development of jurisprudence on the subject

would show us that initially and for many years, the United
States Supreme Court took the view that commercial speech
is not protected by the First Amendment. It fastened itself to
the view that the broad powers of government to regulate
commerce reasonably includes the power to regulate speech
concerning articles of commerce.
344
344
SUPREME COURT
REPORTS ANNOTATED

Duque III
This view started to melt down in the 1970s. In Virginia

Pharmacy Board v. Virginia Citizens Consumer Council, the
U.S. Supreme Court struck down a law prohibiting the
advertising of prices for priscription drugs. It held that price
information was important to consumers, and that the First
Amendment protects the right to receive information as
well as the right to speak. It ruled that consumers have a
strong
2
CONCURRING AND SEPARATE OPINION

PUNO, C.J.:
I fully concur with the well-written and comprehensive ponencia of my esteemed colleague, Ms. Justice Ma. Alicia
Austria-Martinez. I write to elucidate another reason why
the absolute ban on the advertising and promotion of
breastmilk substitutes found under Sections 4(f) and 11 of
A.O. No. 2006-0012 (RIRR) should be struck down.
The advertising and promotion of breastmilk substitutes
properly falls within the ambit of the termcommercial
speechthat
is,
speech
that
proproses
an
economic
transaction. This is a separate category of speech which is

not accorded the same level of protection as that given to
other constitutionally guaranteed forms of expression
but is nonetheless entitled to protection.
_______________
1
The First Amendment as applied to the States thgrough the Fourteenth
Amendment, protects commercial speech from unwarranted governmental

regulation.
2
422 U.S. 748, 762, 96 S. Ct. 1817, 1825, 48 L. Ed. 2d 346 (1976).
345

2007
345

175
lawful activity and not be misleading if it is to be

Duque III
protected under the First Amendment. Next, the asserted

governmental interest must be substantial. If both of
these requirements are met, it must next be determined
First Amendment interest in the free flow of information

about goods and services available in the marketplace and
that any state regulation must support a substantial
whether the state regulation directly advances the
interest.
interest.
Central Hudson Gas & Electric v. Public Service

Commission is the watershed case that established the
primary test for evaluating the constitutionality of
commercial speech regulations. In this landmark decision,
the U.S. Supreme Court held that the regulation issued by
the Public Service Commission of the State of New York,
which reaches allpromotional advertisingregardless of the
governmental interest asserted, and whether it is not

more extensive than is necessary to serve that
We now apply this four-part test to the case at bar.
impact of the touted service on overall energy use, is more
First, it is not claimed that the advertisement at issue is

an unlawful activity or is inaccurate. In fact, both the
Interna_______________
3
extensive than necessary to further the states interest in

energy conservation. In addition, it ruled that there must be
447 U.S. 557 (1980).
346
a showing that a more limited restriction on the content of

promotional advertising would not adequately serve the
interest of the State. In applying the First Amendment, the
346
SUPREME COURT
REPORTS ANNOTATED
U.S. Court rejected the highly paternalistic view that

the government has complete power to suppress or
regulate commercial speech.
Central
Hudson provides
afour-part
analysis for

Duque III
evaluating the validity of regulations of commercial speech.

To begin with,the commercial speech must concern
176
tional Code and the Milk Code recognize and concede that
there are instances when breastmilk substitutes may be
necessary.
Second, there is no doubt that the governmental interest
in providing safe and adequate nutrition to infants and young
children is substantial. This interest is expressed as a
national policy in no less than the fundamental law of our
land and is also embodied in various international
agreements where we are a party. To be sure, the interest of
the state in preserving and promoting the health of its
citizens is inextricably linked to its own existence.
Third, there is an undeniable causal relationship between
the interest of government and the advertising ban.
Unquestionably, breastfeeding is the tested and proven
method of providing optimal nutrition to infants and young
children. The rationale of the absolute ban is to prevent
mothers from succumbing to suggestive and misleading
marketing and propaganda which may be contained in
advertisements of breastmilk substitutes.
Fourth and finally, prescinding from these predicates, we
now come to the critical inquiry: whether the complete
suppression of the advertisement and promotion of breast-
milk substitutes is no more than necessary to further the

interest of the state in the protection and promotion of the
right to health of infants and young children.
I proffer the humble view that the absolute ban on

advertising prescribed under Sections 4(f) and 11 of the RIRR
is unduly restrictive and is more than necessary to
further the avowed governmental interest of promoting the
health of infants and young children. It ought to be selfevident, for instance, that the dvertisement of such products
which are strictly informative cuts too deep on free speech.
The laudable concern of the respondent for the promotion of
the health of infants and young children cannot justify the
absolute, overarching ban.
347

2007
347
AFI International Trading

Corporation (Zamboanga Buying
Station) vs. Lorenzo
Petition partially granted, Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006
declared null and void.
Notes.When the law speaks in clear and categorical
language, there is no reason for interpretation or
construction, but only for application. Opinions of the
Secretary of Justice are unavailing to supplant or rectify any
177
mistake or omission in the law. (Republic vs. Court of

Appeals, 299 SCRA 199 [1998])
The promotion of public health is a fundamental
obligation of the Statethe health of the people is a
primordial governmental concern. In serving the interest of
the public, and to give meaning to the purpose of the law, the
Legislature deemed it necessary to phase out commercial
blood banksthis action may seriously affect the owners and
operators, as well as the employees, of commercial blood

banks but their interests must give way to serve a higher end
for the interest of the public. (Beltran vs. Secretary of
Health,476 SCRA 168 [2005])
o0o
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G.R. No. 139465. January 18, 2000.

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C.

VOL. 322, JANUARY 18, 2000

Secretary of Justice vs. Lantion

the Secretary of Justice has the ministerial duty of filing the

SUPREME COURT REPORTS

extradition petition.In Ruperto v. Torres (100 Phil. 1098

administrative body is exercising judicial functions or merely

extraditee during the pendency of the extradition petition in court

VOL. 322, JANUARY 18, 2000

Secretary of Justice vs. Lantion

gathered from the statute that the action is meant to be criminal

SUPREME COURT REPORTS

precluded from enjoying the right to notice and hearing at a

provisions, and in the second instance, on accepted rules of

VOL. 322, JANUARY 18, 2000

Secretary of Justice vs. Lantion

KAPUNAN, J., Separate Concurring Opinion:

SUPREME COURT REPORTS

the liberty of the person sought to be extradited and a

human rights of person, whether citizen or alien, and the rights of

VOL. 322, JANUARY 18, 2000

SUPREME COURT REPORTS

but without smothering its essence. Proceeding from this

information is too slight to warrant the interposition of judicial

20(a) of PD No. 1069, the general principle is enunciated that a

VOL. 322, JANUARY 18, 2000

Secretary of Justice vs. Lantion

called to decide whether to uphold a citizens basic due

SUPREME COURT REPORTS ANNOTATED

2. B)26 USC 7201 (Attempt to evade or defeat tax; four [4]

Secretary of Justice vs. Lantion

3. C)18 USC 1343 (Fraud by wire, radio, or television; two [2]

On the same day, petitioner issued Department Order No.

VOL. 322, JANUARY 18, 2000

Secretary of Justice vs. Lantion

found that the official English translation of some

law. Article 7 of the Extradition Treaty between the Philippines

SUPREME COURT REPORTS ANNOTATED

tutionally guaranteed rights of the accused in all criminal

grand jury process covered by strict secrecy rules under United

Such was the state of affairs when, on August 6, 1999,

Director of the National Bureau of Investigation, for

VOL. 322, JANUARY 18, 2000

Secretary of Justice vs. Lantion

After due notice to the parties, the case was heard on

SUPREME COURT REPORTS ANNOTATED

Secretary of Justice vs. Lantion

Forthwith, petitioner initiated the instant proceedings,

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief

VOL. 322, JANUARY 18, 2000

NOW, THEREFORE, effective immediately and continuing until

Secretary of Justice vs. Lantion

The case was heard on oral argument on August 31, 1999,

court. Corollarily, in the event that private respondent is

SUPREME COURT REPORTS ANNOTATED

vate respondents basic due process rights and the provisions

also called as the Philippine Extradition Law. Section 2(a)

VOL. 322, JANUARY 18, 2000

In accordance with Paragraphs 2 and 3, Article 7 of the

Secretary of Justice vs. Lantion

1. 1.Documents, statements, or other types of information

1. 3.The text of the applicable law or a statement of the

2. 2.A statement of the facts of the offense and the procedural