G.R. No.

L-14639

March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this application
forhabeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of
triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of
our minds the basic principles of popular government, and if we give expression to the paramount purpose for
which the courts, as an independent power of such a government, were constituted. The primary question
is Shall the judiciary permit a government of the men instead of a government of laws to be set up in the
Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable
reading for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo
Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women of ill
repute, which had been permitted for a number of years in the city of Manila, closed. Between October 16 and
October 25, 1918, the women were kept confined to their houses in the district by the police. Presumably,
during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending
the women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard
cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate, about midnight
of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor
of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol
wagons, and placed them aboard the steamers that awaited their arrival. The women were given no
opportunity to collect their belongings, and apparently were under the impression that they were being taken
to a police station for an investigation. They had no knowledge that they were destined for a life in Mindanao.
They had not been asked if they wished to depart from that region and had neither directly nor indirectly
given their consent to the deportation. The involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their
unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and receipted for as
laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo. The
governor and the hacendero Yigo, who appear as parties in the case, had no previous notification that the
women were prostitutes who had been expelled from the city of Manila. The further happenings to these
women and the serious charges growing out of alleged ill-treatment are of public interest, but are not
essential to the disposition of this case. Suffice it to say, generally, that some of the women married, others
assumed more or less clandestine relations with men, others went to work in different capacities, others
assumed a life unknown and disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number of the deportees presented an application
forhabeas corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the
parties, was made to include all of the women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as including them. The application set forth
the salient facts, which need not be repeated, and alleged that the women were illegally restrained of their
liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and
by certain unknown parties. The writ was made returnable before the full court. The city fiscal appeared for
the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and
prayed that the writ should not be granted because the petitioners were not proper parties, because the
action should have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu,
because the respondents did not have any of the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit attached to
the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on the haciendas of
Yigo and Governor Sales. In open court, the fiscal admitted, in answer to question of a member of the court,
that these women had been sent out of Manila without their consent. The court awarded the writ, in an order
of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the
city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of Davao,

to bring before the court the persons therein named, alleged to be deprived of their liberty, on December 2,
1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of
counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as
commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the
writ was issued were produced in court by the respondents. It has been shown that three of those who had
been able to come back to Manila through their own efforts, were notified by the police and the secret service
to appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the
stand taken by him when pleading to the original petition copied a telegram from the Mayor of the city of
Manila to the provincial governor of Davao and the answer thereto, and telegrams that had passed between
the Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing
that the women were contained with their life in Mindanao and did not wish to return to Manila. Respondents
Sales answered alleging that it was not possible to fulfill the order of the Supreme Court because the women
had never been under his control, because they were at liberty in the Province of Davao, and because they
had married or signed contracts as laborers. Respondent Yigo answered alleging that he did not have any of
the women under his control and that therefore it was impossible for him to obey the mandate. The court,
after due deliberation, on December 10, 1918, promulgated a second order, which related that the
respondents had not complied with the original order to the satisfaction of the court nor explained their
failure to do so, and therefore directed that those of the women not in Manila be brought before the court by
respondents Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in written
statements voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce
the right, or unless the respondents should demonstrate some other legal motives that made compliance
impossible. It was further stated that the question of whether the respondents were in contempt of court
would later be decided and the reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and
policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the women who had returned to the city
through their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for
the respondents, by their returns, once again recounted the facts and further endeavored to account for all of
the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their
representatives and agents, had succeeded in bringing from Davao with their consent eight women; that
eighty-one women were found in Davao who, on notice that if they desired they could return to Manila,
transportation fee, renounced the right through sworn statements; that fifty-nine had already returned to
Manila by other means, and that despite all efforts to find them twenty-six could not be located. Both counsel
for petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court to
find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose
Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yigo,
an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of
the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los
recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final
decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and seventy women were isolated from
society, and then at night, without their consent and without any opportunity to consult with friends or to
defend their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite
the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by
the mere fact that the presence of the police and the constabulary was deemed necessary and that these
officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact
impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question By authority of what law did the
Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to another
distant locality within the Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The
Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of
the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899
authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the

homeland. New York and other States have statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law! Even when the health authorities compel
vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant
to some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right
of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands
and these women despite their being in a sense lepers of society are nevertheless not chattels but Philippine
citizens protected by the same constitutional guaranties as are other citizens to change their domicile from
Manila to another locality. On the contrary, Philippine penal law specifically punishes any public officer who,
not being expressly authorized by law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in
the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle
so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the Philippine Islands, even the President of the United
States, who has often been said to exercise more power than any king or potentate, has no such arbitrary
prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts
within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even
for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and
chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If these
officials can take to themselves such power, then any other official can do the same. And if any official can
exercise the power, then all persons would have just as much right to do so. And if a prostitute could be sent
against her wishes and under no law from one locality to another within the country, then officialdom can
hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or imprisoned,
or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise
destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of
the land. We will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9
Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts
are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The law,"
said Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme
power in our system of government, and every man who by accepting office participates in its functions is only
the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said
Justice Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life,
or the means of living, or any material right essential to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." (Yick
Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus,
and makes clear why we said in the very beginning that the primary question was whether the courts should
permit a government of men or a government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1)
Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It
may still rest with the parties in interest to pursue such an action, but it was never intended effectively and
promptly to meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character in force in
the Philippines who shall banish any person to a place more than two hundred kilometers distant from
his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less
than three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general character in
force in the Philippines who shall compel any person to change his domicile or residence shall suffer
the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public
officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just
as vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime
and that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote

the words of Judge Cooley in a case which will later be referred to "It would be a monstrous anomaly in the
law if to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer
that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was
tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further
rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual
at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its
issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the
Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their
liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the
city of Manila only extends to the city limits and that perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of
the deportees. The way the expulsion was conducted by the city officials made it impossible for the women to
sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their
behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard
for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is
evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though
no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or
should have been made returnable before that court. It is a general rule of good practice that, to avoid
unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest
judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be
granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of
Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable
before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is
dependent on the particular circumstances. In this instance it was not shown that the Court of First Instance of
Davao was in session, or that the women had any means by which to advance their plea before that court. On
the other hand, it was shown that the petitioners with their attorneys, and the two original respondents with
their attorney, were in Manila; it was shown that the case involved parties situated in different parts of the
Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown
that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the
appellate court. The failure of the superior court to consider the application and then to grant the writ would
have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for,
says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were
free in Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits.
At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be
perversive of the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object
and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished
from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude
freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who
handed them over to other parties, who deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either
money or personal belongings, they were prevented from exercising the liberty of going when and where they
pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to
Manila and released or until they freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The chief executive of any
municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the
boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his
hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this
other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of
the court and has it in his power to obey the order of the court and thus to undo the wrong that he has
inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted
with the custody of a person before the application for the writ is no reason why the writ should not issue. If
the mayor and the chief of police, acting under no authority of law, could deport these women from the city of

Manila to Davao, the same officials must necessarily have the same means to return them from Davao to
Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person
who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily
evaded.
It must be that some such question has heretofore been presented to the courts for decision. Nevertheless,
strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain
decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a
writ ofhabeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to
bring into the State a minor child under guardianship in the State, who has been and continues to be detained
in another State. The membership of the Michigan Supreme Court at this time was notable. It was composed
of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court
was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed.
Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy,
J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter appear, the English courts have taken a
contrary view, only the following eloquent passages from the opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the
petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many
confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was
such a fellow that he will have no sovereign," and after the extension of its benefits and securities by
the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of
that great clause for the protection of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay,
that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being
brought to their notice. . . .
The second proposition that the statutory provisions are confined to the case of imprisonment
within the state seems to me to be based upon a misconception as to the source of our jurisdiction.
It was never the case in England that the court of king's bench derived its jurisdiction to issue and
enforce this writ from the statute. Statutes were not passed to give the right, but to compel the
observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is, that it is
directed to and served upon, not the person confined, but his jailor. It does not reach the former
except through the latter. The officer or person who serves it does not unbar the prison doors, and set
the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The
whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be
resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of
affording relief, and if any other means are resorted to, they are only auxiliary to those which are
usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within
reach of process, so that by the power of the court he can be compelled to release his grasp. The
difficulty of affording redress is not increased by the confinement being beyond the limits of the state,
except as greater distance may affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell
[1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed.,
526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken out of English
by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of
the mother and her husband directing the defendant to produce the child. The judge at chambers gave
defendant until a certain date to produce the child, but he did not do so. His return stated that the child
before the issuance of the writ had been handed over by him to another; that it was no longer in his custody
or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal,
the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the
defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice
immediately after the receipt of the writ, together with the cause of her being taken and
detained. That is a command to bring the child before the judge and must be obeyed, unless some
lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by
reason of his having lawfully parted with the possession of the child before the issuing of the writ, the
defendant had no longer power to produce the child, that might be an answer; but in the absence of
any lawful reason he is bound to produce the child, and, if he does not, he is in contempt of the Court
for not obeying the writ without lawful excuse. Many efforts have been made in argument to shift the
question of contempt to some anterior period for the purpose of showing that what was done at some
time prior to the writ cannot be a contempt. But the question is not as to what was done before the
issue of the writ. The question is whether there has been a contempt in disobeying the writ it was
issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q.
B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.],
233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant
to have before the circuit court of the District of Columbia three colored persons, with the cause of their
detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the
city of Washington; that, as he believed, they were removed beyond the District of Columbia before the
service of the writ of habeas corpus, and that they were then beyond his control and out of his custody. The
evidence tended to show that Davis had removed the negroes because he suspected they would apply for a
writ of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was bound to
produce the negroes, and Davis being present in court, and refusing to produce them, ordered that he be
committed to the custody of the marshall until he should produce the negroes, or be otherwise discharged in
due course of law. The court afterwards ordered that Davis be released upon the production of two of the
negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two
negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926.
See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the respondents
constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of the Supreme Court
awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be
punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo
to present the persons named in the writ before the court on December 2, 1918. The order was dated
November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the
writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of November before
sending a telegram to the provincial governor of Davao. According to the response of the attorney for the
Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort
naturally resulted in none of the parties in question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have
produced the bodies of the persons according to the command of the writ; or (2) they could have shown by
affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or
(3) they could have presented affidavits to show that the parties in question or their attorney waived the right
to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose
behalf the writ was granted; they did not show impossibility of performance; and they did not present writings
that waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to
show that the women were contended with their life in Davao, some of which have since been repudiated by
the signers, were appended to the return. That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number either returned at their own expense or were produced at
the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted summarily in finding
the respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their
excuses for the non-production of the persons were far from sufficient. The, authorities cited herein
pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must be
fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court,

said: "We thought that, having brought about that state of things by his own illegal act, he must take the
consequences; and we said that he was bound to use every effort to get the child back; that he must do much
more than write letters for the purpose; that he must advertise in America, and even if necessary himself go
after the child, and do everything that mortal man could do in the matter; and that the court would only
accept clear proof of an absolute impossibility by way of excuse." In other words, the return did not show that
every possible effort to produce the women was made by the respondents. That the court forebore at this
time to take drastic action was because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to give the respondents another
chance to demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become more zealous and to
have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and
the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was
provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a
critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat
by our sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in
Davao, it should receive an executive investigation. If any particular individual is still restrained of her liberty, it
can be made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in
this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members
of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano
Yigo, anhacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its inherent power in order to retain that respect without
which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a
certain person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority,
adjudge the respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's
failure to produce the body of a person in obedience to a writ of habeas corpus when he has power to do so, is
a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99
N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say
that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by
acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the
orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is
nevertheless a powerful mitigating circumstance. The hacendero Yigo appears to have been drawn into the
case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz,
would seem to have done no more than to fulfill his duty as the legal representative of the city government.
Finding him innocent of any disrespect to the court, his counter-motion to strike from the record the
memorandum of attorney for the petitioners, which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record discloses, the official who was primarily responsible
for the unlawful deportation, who ordered the police to accomplish the same, who made arrangements for
the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later,
as the head of the city government, had it within his power to facilitate the return of the unfortunate women
to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ of habeas corpus issued by the court was
only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to
the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the
parties aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to
deal with him as for a contempt. Some members of the court are inclined to this stern view. It would also be
possible to find that since respondent Lukban did comply substantially with the second order of the court, he
has purged his contempt of the first order. Some members of the court are inclined to this merciful view.
Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to obey the
first mandate of the court tended to belittle and embarrass the administration of justice to such an extent that
his later activity may be considered only as extenuating his conduct. A nominal fine will at once command
such respect without being unduly oppressive such an amount is P100.

In resume as before stated, no further action on the writ of habeas corpus is necessary. The respondents
Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court. Respondent
Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five
days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the
record the Replica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed
against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this
decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual
liberty from illegal encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.

Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpusproceeding against Justo Lukban, the mayor of this city.
There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great number
of women of various ages, inmates of the houses of prostitution situated in Gardenia Street, district of
Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses of
prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one hundred
and fifty women were assembled and placed aboard a steamer and transported to Davao, considering that the
existence of the said houses of prostitution has been tolerated for so long a time, it is undeniable that the
mayor of the city, in proceeding in the manner shown, acted without authority of any legal provision which
constitutes an exception to the laws guaranteeing the liberty and the individual rights of the residents of the
city of Manila.
We do not believe in the pomp and obstentation of force displayed by the police in complying with the order
of the mayor of the city; neither do we believe in the necessity of taking them to the distant district of Davao.
The said governmental authority, in carrying out his intention to suppress the segregated district or the
community formed by those women in Gardenia Street, could have obliged the said women to return to their
former residences in this city or in the provinces, without the necessity of transporting them to Mindanao;
hence the said official is obliged to bring back the women who are still in Davao so that they may return to the
places in which they lived prior to their becoming inmates of certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city and his
subordinates, if we take into account the difficulties encountered in bringing the said women who were free at
Davao and presenting them before this court within the time fixed, inasmuch as it does not appear that the
said women were living together in a given place. It was not because they were really detained, but because
on the first days there were no houses in which they could live with a relative independent from one another,
and as a proof that they were free a number of them returned to Manila and the others succeeded in living
separate from their companions who continued living together.
To determine whether or not the mayor acted with a good purpose and legal object and whether he has acted
in good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them to change
their domicile, it is necessary to consider not only the rights and interests of the said women and especially of
the patrons who have been directing and conducting such a reproachable enterprise and shameful business in
one of the suburbs of this city, but also the rights and interests of the very numerous people of Manila where
relatively a few transients accidentally and for some days reside, the inhabitants thereof being more than
three hundred thousand (300,000) who can not, with indifference and without repugnance, live in the same
place with so many unfortunate women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of social morality are to be taken
into account, it is not possible to sustain that it is legal and permissible to establish a house of pandering or

prostitution in the midst of an enlightened population, for, although there were no positive laws prohibiting
the existence of such houses within a district of Manila, the dictates of common sense and dictates of
conscience of its inhabitants are sufficient to warrant the public administration, acting correctly, in exercising
the inevitable duty of ordering the closing and abandonment of a house of prostitution ostensibly open to the
public, and of obliging the inmates thereof to leave it, although such a house is inhabited by its true owner
who invokes in his behalf the protection of the constitutional law guaranteeing his liberty, his individual rights,
and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in his
favor the constitutional law which guarantees his liberty and individual rights, should the administrative
authority order his hospitalization, reclusion, or concentration in a certain island or distant point in order to
free from contagious the great majority of the inhabitants of the country who fortunately do not have such
diseases. The same reasons exist or stand good with respect to the unfortunate women dedicated to
prostitution, and such reasons become stronger because the first persons named have contracted their
diseases without their knowledge and even against their will, whereas the unfortunate prostitutes voluntarily
adopted such manner of living and spontaneously accepted all its consequences, knowing positively that their
constant intercourse with men of all classes, notwithstanding the cleanliness and precaution which they are
wont to adopt, gives way to the spread or multiplication of the disease known as syphilis, a venereal disease,
which, although it constitutes a secret disease among men and women, is still prejudicial to the human species
in the same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other
contagious diseases which produce great mortality and very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give her
sufficient remuneration for her subsistence, prefers to put herself under the will of another woman who is
usually older than she is and who is the manager or owner of a house of prostitution, or spontaneously
dedicates herself to this shameful profession, it is undeniable that she voluntarily and with her own
knowledge renounces her liberty and individual rights guaranteed by the Constitution, because it is evident
that she can not join the society of decent women nor can she expect to get the same respect that is due to
the latter, nor is it possible for her to live within the community or society with the same liberty and rights
enjoyed by every citizen. Considering her dishonorable conduct and life, she should therefore be comprised
within that class which is always subject to the police and sanitary regulations conducive to the maintenance
of public decency and morality and to the conservation of public health, and for this reason it should not
permitted that the unfortunate women dedicated to prostitution evade the just orders and resolutions
adopted by the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but those who have been
worrying so much about the prejudice resulting from a governmental measure, which being a very drastic
remedy may be considered arbitrary, have failed to consider with due reflection the interests of the
inhabitants of this city in general and particularly the duties and responsibilities weighing upon the authorities
which administer and govern it; they have forgotten that many of those who criticize and censure the mayor
are fathers of families and are in duty bound to take care of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal life
they assumed, were obliged to change their residence not by a private citizen but by the mayor of the city who
is directly responsible for the conservation of public health and social morality, the latter could take the step
he had taken, availing himself of the services of the police in good faith and only with the purpose of
protecting the immense majority of the population from the social evils and diseases which the houses of
prostitution situated in Gardenia Street have been producing, which houses have been constituting for years a
true center for the propagation of general diseases and other evils derived therefrom. Hence, in ordering the
dissolution and abandonment of the said houses of prostitution and the change of the domicile of the inmates
thereof, the mayor did not in bad faith violate the constitutional laws which guarantees the liberty and the
individual rights of every Filipino, inasmuch as the women petitioners do not absolutely enjoy the said liberty
and rights, the exercise of which they have voluntarily renounced in exchange for the free practice of their
shameful profession.
In very highly advanced and civilized countries, there have been adopted by the administrative authorities
similar measures, more or less rigorous, respecting prostitutes, considering them prejudicial to the people,
although it is true that in the execution of such measures more humane and less drastic procedures, fortiter in
re et suaviter in forma, have been adopted, but such procedures have always had in view the ultimate object
of the Government for the sake of the community, that is, putting an end to the living together in a certain
place of women dedicated to prostitution and changing their domicile, with the problematical hope that they
adopt another manner of living which is better and more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is obliged to
take back and restore the said women who are at present found in Davao, and who desire to return to their
former respective residences, not in Gardenia Street, Sampaloc District, with the exception of the prostitutes
who should expressly make known to the clerk of court their preference to reside in Davao, which
manifestation must be made under oath. This resolution must be transmitted to the mayor within the shortest
time possible for its due compliance. The costs shall be charged de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision rendered in these proceedings,
with respect to the finding as to the importance of the contempt committed, according to the same decision,
by Justo Lukban, Mayor of the city of Manila, and the consequent imposition upon him of a nominal fine of
P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record disclosed, the mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of Davao. According
to the response of the Attorney for the Bureau of Labor to the telegram of his chief, there were then in
Davao women who desired to return to Manila, but who should not be permitted to do so because of
having contracted debts. The half-hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.
In accordance with section 87 of General Orders No. 58, as said in the same decision, the respondents, for the
purpose of complying with the order of the court, could have, (1) produced the bodies of the persons
according to the command of the writ; (2) shown by affidavits that on account of sickness or infirmity the said
women could not safely be brought before this court; and (3) presented affidavits to show that the parties in
question or their lawyers waived their right to be present. According to the same decision, the said
respondents ". . . did not produce the bodies of the persons in whose behalf the writ was granted; did not
show impossibility of performance; and did not present writings, that waived the right to be present by those
interested. Instead, a few stereotyped affidavits purporting to show that the women were contented with
their life in Davao, some of which have since been repudiated by the signers, were appended to the return.
That through ordinary diligence a considerable number of the women, at least sixty, could have been brought
back to Manila is demonstrated by the fact that during this time they were easily to be found in the
municipality of Davao, and that about this number either returned at their own expense or were produced at
the second hearing by the respondents."
The majority opinion also recognized that, "That court, at the time the return to its first order was made,
would have been warranted summarily in finding the respondent guilty of contempt of court, and in sending
them to jail until they obeyed the order. Their excuses for the non production of the persons were far from
sufficient." To corroborate this, the majority decision cites the case of the Queen vs. Barnardo, Gossage's Case
([1890], 24 Q. B. D., 283) and added "that the return did not show that every possible effort to produce the
women was made by the respondents."
When the said return by the respondents was made to this court in banc and the case discussed, my opinion
was that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a second order
referred to in the decision was issued on December 10, 1918, requiring the respondents to produce before the
court, on January 13, 1919, the women who were not in Manila, unless they could show that it was impossible
to comply with the said order on the two grounds previously mentioned. With respect to this second order,
the same decision has the following to say:
In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and countercharges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a substantial compliance with it.
I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the issuance of
the first order on November 4th till the 21st of the same month before taking the first step for compliance
with the mandate of the said order; he waited till the 21st of November, as the decision says, before he sent a
telegram to the provincial governor o f Davao and naturally this half-hearted effort, as is so qualified in the
decision, resulted in that none of the women appeared before this court on December 2nd. Thus, the said
order was not complied with, and in addition to this noncompliance there was the circumstances that seven of
the said women having returned to Manila at their own expense before the said second day of December and
being in the antechamber of the court room, which fact was known to Chief of Police Hohmann, who was then
present at the trial and to the attorney for the respondents, were not produced before the court by the
respondents nor did the latter show any effort to present them, in spite of the fact that their attention was
called to this particular by the undersigned.
The result of the said second order was, as is said in the same decision, that the respondents, on January 13th,
the day fixed for the protection of the women before this court, presented technically the seven (7) women
above-mentioned who had returned to the city at their own expense and the other eight (8) women whom
the respondents themselves brought to Manila, alleging moreover that their agents and subordinates
succeeded in bringing them from Davao with their consent; that in Davao they found eighty-one (81) women
who, when asked if they desired to return to Manila with free transportation, renounced such a right, as is
shown in the affidavits presented by the respondents to this effect; that, through other means, fifty-nine (59)
women have already returned to Manila, but notwithstanding the efforts made to find them it was not
possible to locate the whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and
eighty-one (181) women who, as has been previously said, have been illegally detained by Mayor Lukban and
Chief of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to
Manila and presented before this court by the respondents in compliance with the said two orders. Fifty-nine
(59) of them have returned to Manila through other means not furnished by the respondents, twenty-six of
whom were brought by the attorney for the petitioners, Mendoza, on his return from Davao. The said
attorney paid out of his own pocket the transportation of the said twenty-six women. Adding to these
numbers the other seven (7) women who returned to this city at their own expense before January 13 we
have a total of sixty-six (66), which evidently proves, on the one hand, the falsity of the allegation by the
respondents in their first answer at the trial of December 2, 1918, giving as one of the reasons for their
inability to present any of the said women that the latter were content with their life in Mindanao and did not
desire to return to Manila; and, on the other hand, that the respondents, especially the first named, that is
Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance with the orders
issued by this court, could bring before December 2nd, the date of the first hearing of the case, as well as
before January 13th, the date fixed for the compliance with the second order, if not the seventy-four (74)
women already indicated, at least a great number of them, or at least sixty (60) of them, as is said in the
majority decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and
the municipal police, and had transportation facilities for the purpose. But the said respondent mayor brought
only eight (8) of the women before this court on January 13th. This fact can not, in my judgment, with due
respect to the majority opinion, justify the conclusion that the said respondent has substantially complied with
the second order of this court, but on the other hand demonstrates that he had not complied with the
mandate of this court in its first and second orders; that neither of the said orders has been complied with by
the respondent Justo Lukban, Mayor of the city of Manila, who is, according to the majority decision,
principally responsible for the contempt, to which conclusion I agree. The conduct of the said respondent with
respect to the second order confirms the contempt committed by non-compliance with the first order and
constitutes a new contempt because of non-compliance with the second, because of the production of only
eight (8) of the one hundred and eighty-one (181) women who have been illegally detained by virtue of his
order and transported to Davao against their will, committing the twenty-six (26) women who could not be
found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals with the
remedy of habeas corpus, presented by the petitioners and involving the question whether they should or not
be granted their liberty, the respondent has not given due attention to the same nor has he made any effort
to comply with the second order. In other words, he has disobeyed the said two orders; has despised the
authority of this court; has failed to give the respect due to justice; and lastly, he has created and placed
obstacles to the administration of justice in the said habeas corpus proceeding, thus preventing, because of his
notorious disobedience, the resolution of the said proceeding with the promptness which the nature of the
same required.
Contempt of court has been defined as a despising of the authority, justice, or dignity of the court; and
he is guilty of contempt whose conduct is such as tends to bring the authority and administration of
the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless
the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p. 502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to
obstruct the service of legal process. If a person hinders or prevents the service of process by deceiving
the officer or circumventing him by any means, the result is the same as though he had obstructed by
some direct means. (Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for the
law and for the means it has provided in civilized communities for establishing justice, since true
respect never comes in that way, it is apparent nevertheless that the power to enforce decorum in the
courts and obedience to their orders and just measures is so essentially a part of the life of the courts
that it would be difficult to conceive of their usefulness or efficiency as existing without it. Therefore it
may be said generally that where due respect for the courts as ministers of the law is wanting, a
necessity arises for the use of compulsion, not, however, so much to excite individual respect as to
compel obedience or to remove an unlawful or unwarranted interference with the administration of
justice. (Ruling Case Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the law itself, and has been exercised from the earliest
times. In England it has been exerted when the contempt consisted of scandalizing the sovereign or his
ministers, the law-making power, or the courts. In the American states the power to punish for
contempt, so far as the executive department and the ministers of state are concerned, and in some
degree so far as the legislative department is concerned, is obsolete, but it has been almost universally
preserved so far as regards the judicial department. The power which the courts have of vindicating
their own authority is a necessary incident to every court of justice, whether of record or not; and the
authority for issuing attachments in a proper case for contempts out of court, it has been declared,
stands upon the same immemorial usage as supports the whole fabric of the common law. . . . (Ruling
Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of the prestige of
the authority of the court which issued the said orders, which loss might have been caused by noncompliance
with the same orders on the part of the respondent Justo Lukban; the damages which might have been
suffered by some of the women illegally detained, in view of the fact that they were not brought to Manila by
the respondents to be presented before the court and of the further fact that some of them were obliged to
come to this city at their own expense while still others were brought to Manila by the attorney for the
petitioners, who paid out of his own pocket the transportation of the said women; and the delay which was
necessarily incurred in the resolution of the petition interposed by the said petitioners and which was due to
the fact that the said orders were not opportunately and duly obeyed and complied with, are circumstances
which should be taken into account in imposing upon the respondent Justo Lukban the penalty corresponding
to the contempt committed by him, a penalty which, according to section 236 of the Code of Civil Procedure,
should consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or both such fine and
imprisonment. In the imposition of the penalty, there should also be taken into consideration the special
circumstance that the contempt was committed by a public authority, the mayor of the city of Manila, the first
executive authority of the city, and consequently, the person obliged to be the first in giving an example of
obedience and respect for the laws and the valid and just orders of the duly constituted authorities as well as
for the orders emanating from the courts of justice, and in giving help and aid to the said courts in order that
justice may be administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon the
respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged against him.
Lastly, I believe it to be my duty to state here that the records of this proceeding should be transmitted to the
Attorney-General in order that, after a study of the same and deduction from the testimony which he may
deem necessary, and the proper transmittal of the same to the fiscal of the city of Manila and to the provincial
fiscal of Davao, both the latter shall present the corresponding informations for the prosecution and
punishment of the crimes which have been committed on the occasion when the illegal detention of the
women was carried into effect by Mayor Justo Lukban of the city of Manila and Chief of Police Anton
Hohmann, and also of those crimes committed by reason of the same detention and while the women were in
Davao. This will be one of the means whereby the just hope expressed in the majority decision will be realized,
that is, that in the Philippine Islands there should exist a government of laws and not a government of men
and that this decision may serve to bulwark the fortifications of an orderly Government of laws and to protect
individual liberty from illegal encroachments.

G.R. No. 173034

October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,

vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO,
DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT
SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T.
GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk. There is
nothing greater than for a mother to nurture her beloved child straight from her bosom. The ideal is, of course, for
each and every Filipino child to enjoy the unequaled benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Administrative
Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51,
Otherwise Known as The "Milk Code," Relevant International Agreements, Penalizing Violations Thereof,
and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that are not
constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of
Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-respondent since
respondents issued the questioned RIRR in their capacity as officials of said executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the
legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses of the
Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA
adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it
should be ensured that nutrition and health claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument
provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that
all segments of society, specially parents and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes,
filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order
(TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the
provisions of the Constitution in promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the
questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The
Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR)
issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the
land and may be implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in
accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in
restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global Strategy
on Infant and Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court adopts
the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:
The modern view is that an association has standing to complain of injuries to its members. This view fuses
the legal identity of an association with that of its members. An association has standing to file suit for
its workers despite its lack of direct interest if its members are affected by the action. An
organization has standing to assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the
representative of any individual, company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members,
because it and its members are in every practical sense identical. x x x The respondent [association]
is but the medium through which its individual members seek to make more effective the expression
of their voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an association
has the legal personality to represent its members because the results of the case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary,
that the association is formed "to represent directly or through approved representatives the pharmaceutical and
health care industry before the Philippine Government and any of its agencies, the medical professions and the
general public."8 Thus, as an organization, petitioner definitely has an interest in fulfilling its avowed purpose of
representing members who are part of the pharmaceutical and health care industry. Petitioner is duly authorized9to
take the appropriate course of action to bring to the attention of government agencies and the courts any grievance
suffered by its members which are directly affected by the RIRR. Petitioner, which is mandated by its Amended
Articles of Incorporation to represent the entire industry, would be remiss in its duties if it fails to act on
governmental action that would affect any of its industry members, no matter how few or numerous they are. Hence,
petitioner, whose legal identity is deemed fused with its members, should be considered as a real party-in-interest
which stands to be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of
the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and
expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only the Milk Code
but also various international instruments10 regarding infant and young child nutrition. It is respondents' position that
said international instruments are deemed part of the law of the land and therefore the DOH may implement them
through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations
Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and
(3) the Convention on the Elimination of All Forms of Discrimination Against Women, only provide in general terms
that steps must be taken by State Parties to diminish infant and child mortality and inform society of the advantages
of breastfeeding, ensure the health and well-being of families, and ensure that women are provided with services
and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific provisions
regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and
various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either
bytransformation or incorporation.11 The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies
when, by mere constitutional declaration, international law is deemed to have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the
Constitution which provides that "[n]o treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the members of the Senate." Thus, treaties or conventional international law must go
through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to
domestic conflicts.13

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all
members of the Senate as required under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through local
legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction
and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code
did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of promotion to the
general public of products within the scope of the ICMBS. Instead, the Milk Code expressly provides that
advertising, promotion, or other marketing materials may be allowed if such materials are duly authorized
and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation
in international law sees those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of States; and a psychological
element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory by the existence of a rule of law
requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or customary international law which
are binding on all states,17 i.e., renunciation of war as an instrument of national policy, the principle of sovereign
immunity,18 a person's right to life, liberty and due process,19 and pacta sunt servanda,20 among others. The concept
of "generally accepted principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary source of international
law because they have the "character of jus rationale" and are "valid through all kinds of human
societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296).
O'Connell holds that certain priniciples are part of international law because they are "basic to legal systems
generally" and hence part of the jus gentium. These principles, he believes, are established by a process of
reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must
look to state practice and determine whether the municipal law principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of states followed by them
from a sense of legal obligation [opinio juris]." (Restatement) This statement contains the two basic
elements of custom: the material factor, that is, how states behave, and the psychological
orsubjective factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states. This includes
several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and the generality of
the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to determine why states
behave the way they do. Do states behave the way they do because they consider it obligatory to behave
thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international rule. Without it, practice is not
law.22 (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.23

WHA Resolutions have not been embodied in any local legislation. Have they attained the status of customary law
and should they then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied with the United Nations
(UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the
WHA which determines the policies of the WHO,26 and has the power to adopt regulations concerning "advertising
and labeling of biological, pharmaceutical and similar products moving in international commerce,"27 and to "make
recommendations to members with respect to any matter within the competence of the Organization."28 The legal
effect of its regulations, as opposed to recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any
matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be
required for the adoption of such conventions or agreements, which shall come into force for each
Member when accepted by it in accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health
Assembly of a convention or agreement, take action relative to the acceptance of such convention or
agreement. Each Member shall notify the Director-General of the action taken, and if it does not accept
such convention or agreement within the time limit, it will furnish a statement of the reasons for nonacceptance. In case of acceptance, each Member agrees to make an annual report to the Director-General
in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and
quarantine requirements and other procedures designed to prevent the international spread of disease; (b)
nomenclatures with respect to diseases, causes of death and public health practices; (c) standards with
respect to diagnostic procedures for international use; (d) standards with respect to the safety, purity and
potency of biological, pharmaceutical and similar products moving in international commerce; (e) advertising
and labeling of biological, pharmaceutical and similar products moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice
has been given of their adoption by the Health Assembly except for such Members as may notify the
Director-General of rejection or reservations within the period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force for members, in the
same way that conventions or agreements under Article 19 and regulations under Article 21 come into force.
Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with respect
to any matter within the competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation would come into force for
member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not
binding, but they "carry moral and political weight, as they constitute the judgment on a health issue of the collective
membership of the highest international body in the field of health."29 Even the ICMBS itself was adopted as a mere
recommendation, as WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the
International Code of Marketing of Breastmilk Substitutes annexed to the present resolution." (Emphasis
supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session,
considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-fourth
World Health Assembly the text of a resolution by which it would adopt the code in the form of a
recommendation rather than a regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to
wit:
Art. 62. Each member shall report annually on the action taken with respect to recommendations made to it
by the Organization, and with respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states to
implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what has been done
with the ICMBS whereby the legislature enacted most of the provisions into law which is the Milk Code, the
subsequent WHA Resolutions,30 specifically providing for exclusive breastfeeding from 0-6 months,
continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and promotions of
breastmilk substitutes, have not been adopted as a domestic law.

It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that
influence state behavior.31
"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946
Statute of the International Court of Justice.32 It is, however, an expression of non-binding norms, principles, and
practices that influence state behavior.33 Certain declarations and resolutions of the UN General Assembly fall under
this category.34 The most notable is the UN Declaration of Human Rights, which this Court has enforced in various
cases, specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v. Director of
Prisons,36 Mijares v. Raada37 and Shangri-la International Hotel Management, Ltd. v. Developers Group of
Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the mandate to
promote and protect intellectual property worldwide, has resorted to soft law as a rapid means of norm creation, in
order "to reflect and respond to the changing needs and demands of its constituents."39 Other international
organizations which have resorted to soft law include the International Labor Organization and the Food and
Agriculture Organization (in the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome (SARS)
and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on WHO member states,
it provides an excellent example of the power of "soft law" in international relations. International
lawyers typically distinguish binding rules of international law-"hard law"-from non-binding norms,
principles, and practices that influence state behavior-"soft law." WHO has during its existence
generated many soft law norms, creating a "soft law regime" in international governance for public
health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for
improved international cooperation on infectious diseases. These resolutions clearly define WHO member
states' normative duty to cooperate fully with other countries and with WHO in connection with infectious
disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is
powerful politically for two reasons. First, the SARS outbreak has taught the lesson that participating in,
and enhancing, international cooperation on infectious disease controls is in a country's self-interest x x x if
this warning is heeded, the "soft law" in the SARS and IHR Resolution could inform the development of
general and consistent state practice on infectious disease surveillance and outbreak response, perhaps
crystallizing eventually into customary international law on infectious disease prevention and control.41
In the Philippines, the executive department implemented certain measures recommended by WHO to address the
outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on
February 2, 2004, delegating to various departments broad powers to close down schools/establishments, conduct
health surveillance and monitoring, and ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to implement the IHR
Resolution was still considered not binding or enforceable, although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it must be established that
such rule is being followed by states because they consider it obligatory to comply with such rules (opinio juris).
Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by most of the
member states, were in fact enforced or practiced by at least a majority of the member states; neither have
respondents proven that any compliance by member states with said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law
that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The
provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be
implemented by executive agencies without the need of a law enacted by the legislature.
Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by virtue
of its powers and functions under the Revised Administrative Code even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define the
national health policy and implement a national health plan within the framework of the government's general
policies and plans, and issue orders and regulations concerning the implementation of established health
policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of breastmilk
substitutes provided in some WHA Resolutions has been adopted as part of the national health policy.
Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. 2005-0014,
dated May 23, 2005. Basically, the Administrative Order declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of breastfeeding, exclusive breastfeeding for the first six months,
extended breastfeeding up to two years and beyond; (2) appropriate complementary feeding, which is to start at age

six months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding options;
and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is
emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that as part of
such health policy, the advertisement or promotion of breastmilk substitutes should be absolutely
prohibited.
The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with a
total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion of
breastmilk substitutes, but instead, specifically creates an IAC which will regulate said advertising and promotion, it
follows that a total ban policy could be implemented only pursuant to a law amending the Milk Code passed by the
constitutionally authorized branch of government, the legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly
implemented by the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk
Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to
"young children" or those from ages two years old and beyond:
MILK CODE
WHEREAS, in order to ensure that safe and
adequate nutrition for infants is provided, there
is a need to protect and promote breastfeeding
and to inform the public about the proper use
of breastmilk substitutes and supplements and
related products through adequate, consistent
and objective information and appropriate
regulation of the marketing and distribution of
the said substitutes, supplements and related
products;

RIRR
Section 2. Purpose These Revised Rules
and Regulations are hereby promulgated to
ensure the provision of safe and adequate
nutrition for infants and young children by the
promotion, protection and support of
breastfeeding and by ensuring the proper use
of breastmilk substitutes, breastmilk
supplements and related products when these
are medically indicated and only when
necessary, on the basis of adequate
information and through appropriate marketing
SECTION 4(e). "Infant" means a person falling and distribution.
within the age bracket of 0-12 months.
Section 5(ff). "Young Child" means a person
from the age of more than twelve (12) months
up to the age of three (3) years (36 months).
2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in
certain instances; but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and declares
that "there is no substitute nor replacement for breastmilk":
MILK CODE
WHEREAS, in order to ensure that safe and
adequate nutrition for infants is provided, there
is a need to protect and promote breastfeeding
and to inform the public about the proper use
of breastmilk substitutes and supplements and
related products through adequate, consistent
and objective information and appropriate
regulation of the marketing and distribution of
the said substitutes, supplements and related
products;

RIRR
Section 4. Declaration of Principles The
following are the underlying principles from
which the revised rules and regulations are
premised upon:
a. Exclusive breastfeeding is for infants from 0
to six (6) months.
b. There is no substitute or replacement for
breastmilk.

3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and
promotion; RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for infants
from 0-24 months old or beyond, and forbids the use of health and nutritional claims. Section 13 of the
RIRR, which provides for a "total effect" in the promotion of products within the scope of the Code, is vague:
MILK CODE
SECTION 6. The General Public and
Mothers.

RIRR
Section 4. Declaration of Principles The
following are the underlying principles from
which the revised rules and regulations are
premised upon:

(a) No advertising, promotion or other

marketing materials, whether written, audio or
visual, for products within the scope of this
xxxx
Code shall be printed, published, distributed,
exhibited and broadcast unless such materials f. Advertising, promotions, or sponsor-shipsof

are duly authorized and approved by an inter- infant formula, breastmilk substitutes and other
agency committee created herein pursuant to related products are prohibited.
the applicable standards provided for in this
Code.
Section 11. Prohibition No advertising,
promotions, sponsorships, or marketing
materials and activities for breastmilk
substitutes intended for infants and young
children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give
subliminal messages or impressions that
undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes
and/or replacements, as well as related
products covered within the scope of this
Code.
Section 13. "Total Effect" - Promotion of
products within the scope of this Code must be
objective and should not equate or make the
product appear to be as good or equal to
breastmilk or breastfeeding in the advertising
concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect"
should not directly or indirectly suggest that
buying their product would produce better
individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner
bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Section 15. Content of Materials. - The
following shall not be included in advertising,
promotional and marketing materials:
a. Texts, pictures, illustrations or information
which discourage or tend to undermine the
benefits or superiority of breastfeeding or
which idealize the use of breastmilk substitutes
and milk supplements. In this connection, no
pictures of babies and children together with
their mothers, fathers, siblings, grandparents,
other relatives or caregivers (or yayas) shall be
used in any advertisements for infant formula
and breastmilk supplements;
b. The term "humanized," "maternalized,"
"close to mother's milk" or similar words in
describing breastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the use of
infant and milk formula.
Section 16. All health and nutrition claims for
products within the scope of the Code are
absolutely prohibited. For this purpose, any
phrase or words that connotes to increase
emotional, intellectual abilities of the infant and
young child and other like phrases shall not be
allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE
SECTION 10. Containers/Label.

RIRR
Section 26. Content Each container/label
shall contain such message, in both Filipino
(a) Containers and/or labels shall be designed and English languages, and which message
to provide the necessary information about the cannot be readily separated therefrom, relative
appropriate use of the products, and in such a the following points:
way as not to discourage breastfeeding.
(a) The words or phrase "Important Notice" or
"Government Warning" or their equivalent;
(b) Each container shall have a clear,
conspicuous and easily readable and
understandable message in Pilipino or English (b) A statement of the superiority of
printed on it, or on a label, which message can

not readily become separated from it, and

which shall include the following points:
(i) the words "Important Notice" or their
equivalent;
(ii) a statement of the superiority of
breastfeeding;

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;

(iii) a statement that the product shall be used

only on the advice of a health worker as to the (e) Instructions for appropriate prepara-tion,
need for its use and the proper methods of
and a warning against the health hazards of
use; and
inappropriate preparation; and
(iv) instructions for appropriate preparation,
and a warning against the health hazards of
inappropriate preparation.

(f) The health hazards of unnecessary or

improper use of infant formula and other
related products including information that
powdered infant formula may contain
pathogenic microorganisms and must be
prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR
totally prohibits such activity:
MILK CODE
SECTION 7. Health Care System.
(b) No facility of the health care system shall
be used for the purpose of promoting infant
formula or other products within the scope of
this Code. This Code does not, however,
preclude the dissemination of information to
health professionals as provided in Section
8(b).
SECTION 8. Health Workers. (b) Information provided by manufacturers and
distributors to health professionals regarding
products within the scope of this Code shall be
restricted to scientific and factual matters and
such information shall not imply or create a
belief that bottle-feeding is equivalent or
superior to breastfeeding. It shall also include
the information specified in Section 5(b).

RIRR
Section 22. No manufacturer, distributor, or
representatives of products covered by the
Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information, Education and Communication
(IEC) materials on breastfeeding, holding of or
participating as speakers in classes or
seminars for women and children activities and
to avoid the use of these venues to market
their brands or company names.
SECTION 16. All health and nutrition claims for
products within the scope of the Code are
absolutely prohibited. For this purpose, any
phrase or words that connotes to increase
emotional, intellectual abilities of the infant and
young child and other like phrases shall not be
allowed.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and
continuing education of health professionals; RIRR absolutely forbids the same.
MILK CODE
SECTION 8. Health Workers

RIRR
Section 4. Declaration of Principles

(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.

The following are the underlying principles

from which the revised rules and regulations
are premised upon:
i. Milk companies, and their
representatives,should not form part of any
policymaking body or entity in relation to the
advancement of breasfeeding.
SECTION 22. No manufacturer, distributor, or
representatives of products covered by the
Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information, Education and Communication
(IEC) materials on breastfeeding, holding of or
participating as speakers in classes or
seminars for women and children activitiesand
to avoid the use of these venues to market
their brands or company names.
SECTION 32. Primary Responsibility of

Health Workers - It is the primary

responsibility of the health workers to promote,
protect and support breastfeeding and
appropriate infant and young child feeding.
Part of this responsibility is to continuously
update their knowledge and skills on
breastfeeding. No assistance, support, logistics
or training from milk companies shall be
permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE
SECTION 6. The General Public and
Mothers.

RIRR
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
(f) Nothing herein contained shall prevent
donations from manufacturers and distributors be strictly prohibited.
of products within the scope of this Code upon
request by or with the approval of the Ministry Section 52. Other Donations By Milk
of Health.
Companies Not Covered by this Code. Donations of products, equipments, and the
like, not otherwise falling within the scope of
this Code or these Rules, given by milk
companies and their agents, representatives,
whether in kind or in cash, may only be
coursed through the Inter Agency Committee
(IAC), which shall determine whether such
donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE

RIRR
Section 46. Administrative Sanctions. The
following administrative sanctions shall be
imposed upon any person, juridical or natural,
found to have violated the provisions of the
Code and its implementing Rules and
Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a
minimum of Ten Thousand (P10,000.00) to
Fifty Thousand (P50,000.00) Pesos,
depending on the gravity and extent of the
violation, including the recall of the offending
product;
c) 3rd violation Administrative Fine of a
minimum of Sixty Thousand (P60,000.00) to
One Hundred Fifty Thousand (P150,000.00)
Pesos, depending on the gravity and extent of
the violation, and in addition thereto, the recall
of the offending product, and suspension of the
Certificate of Product Registration (CPR);
d) 4th violation Administrative Fine of a
minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred (P500,000.00)
Thousand Pesos, depending on the gravity
and extent of the violation; and in addition
thereto, the recall of the product, revocation of
the CPR, suspension of the License to
Operate (LTO) for one year;
e) 5th and succeeding repeated violations
Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of the
offending product, cancellation of the CPR,
revocation of the License to Operate (LTO) of
the company concerned, including the
blacklisting of the company to be furnished the
Department of Budget and Management

(DBM) and the Department of Trade and

Industry (DTI);
f) An additional penalty of Two Thou-sand Five
Hundred (P2,500.00) Pesos per day shall be
made for every day the violation continues
after having received the order from the IAC or
other such appropriate body, notifying and
penalizing the company for the infraction.
For purposes of determining whether or not
there is "repeated" violation, each product
violation belonging or owned by a company,
including those of their subsidiaries, are
deemed to be violations of the concerned milk
company and shall not be based on the
specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old.
Section 3 of the Milk Code states:
SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the
following products: breastmilk substitutes, including infant formula; other milk products, foods and
beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be
suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding bottles
and teats. It also applies to their quality and availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being
marketed to the public. The law treats infant formula, bottle-fed complementary food, and breastmilk substitute as
separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal nutritional
requirements of infants up to between four to six months of age, and adapted to their physiological characteristics";
while under Section 4(b), bottle-fed complementary food refers to "any food, whether manufactured or locally
prepared, suitable as a complement to breastmilk or infant formula, when either becomes insufficient to satisfy the
nutritional requirements of the infant." An infant under Section 4(e) is a person falling within the age bracket 0-12
months. It is the nourishment of this group of infants or children aged 0-12 months that is sought to be promoted and
protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being marketed or
otherwise presented as a partial or total replacement for breastmilk, whether or not suitable for that purpose."This
section conspicuously lacks reference to any particular age-group of children. Hence, the provision of the
Milk Code cannot be considered exclusive for children aged 0-12 months. In other words, breastmilk
substitutes may also be intended for young children more than 12 months of age. Therefore, by regulating
breastmilk substitutes, the Milk Code also intends to protect and promote the nourishment of children more than 12
months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section 3, then it
can be subject to regulation pursuant to said law, even if the product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that breastmilk
substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As held
in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule should not be studied as detached
and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its
parts and in order to produce a harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of breastmilk
substitutes is proper if based on complete and updated information." Section 8 of the RIRR also states that
information and educational materials should include information on the proper use of infant formula when the use
thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk
substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with each other.

To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it
is important to deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as defined in
general under the 1987 Administrative Code,47 and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in
exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to
further discuss it..48 However, health information, particularly advertising materials on apparently non-toxic products
like breastmilk substitutes and supplements, is a relatively new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was already within
the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof charged it with the duty to
protect the health of the people, and vested it with such powers as "(g) the dissemination of hygienic information
among the people and especially the inculcation of knowledge as to the proper care of infantsand the methods
of preventing and combating dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy pronounced
under Section 15, Article II of the 1987 Constitution, which is "to protect and promote the right to health of the
people and instill health consciousness among them."52 To that end, it was granted under Section 3 of the
Administrative Code the power to "(6) propagate health information and educate the populationon important
health, medical and environmental matters which have health implications."53
When it comes to information regarding nutrition of infants and young children, however, the Milk Code specifically
delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure that there is adequate,
consistent and objective information on breastfeeding and use of breastmilk substitutes, supplements and related
products; and the power to control such information. These are expressly provided for in Sections 12 and 5(a), to
wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of the
provisions of this Code. For this purpose, the Ministry of Health shall have the following powers and
functions:
(1) To promulgate such rules and regulations as are necessary or proper for the implementation of
this Code and the accomplishment of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or incidental to the
attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding,
for use by families and those involved in the field of infant nutrition. This responsibility shall cover the
planning, provision, design and dissemination of information, and the control thereof, on infant nutrition.
(Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis-visbreastmilk substitutes, supplement and related products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
infants and intended to reach pregnant women and mothers of infants, shall include clear information on all
the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods or feeding methods; and, in
particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk
substitutes.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within
the scope of this Code shall be restricted to scientific and factual matters, and such information shall

not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also
include the information specified in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate
use of the products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to whom such information may be
disseminated under Sections 6 through 9 of the Milk Code54 to ensure that the information that would reach
pregnant women, mothers of infants, and health professionals and workers in the health care system is restricted to
scientific and factual matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control information regarding
breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not encompass the power to
absolutely prohibit the advertising, marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control over information given
to the DOH is not absolute and that absolute prohibition is not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate marketing and distribution of breastmilk
substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of safe and
adequate nutrition for infants by the protection and promotion of breastfeeding and by ensuring the
proper use of breastmilk substitutes and breastmilk supplements when these are necessary, on the
basis of adequate information and through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and practices related to
breastmilk substitutes, including infant formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and consistent information is
provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not
use any picture or text which may idealize the use of breastmilk substitutes and should include information
on the health hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine
advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health professionals but such
information should be restricted to factual and scientific matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that would discourage
breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling and
advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements, specifically: a)
that there be a statement that there is no substitute to breastmilk; and b) that there be a statement that powdered
infant formula may contain pathogenic microorganisms and must be prepared and used appropriately. Section
1657 of the RIRR prohibits all health and nutrition claims for products within the scope of the Milk Code, such as
claims of increased emotional and intellectual abilities of the infant and young child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within
the scope of this Code shall be restricted to scientific and factual matters, and such informationshall
not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also include
the information specified in Section 5.58 (Emphasis supplied)

and Section 10(d)59 which bars the use on containers and labels of the terms "humanized," "maternalized," or similar
terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any
milk product equivalent to breastmilk or which is humanized or maternalized, as such information would be
inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding
breastmilk substitutes, not to containers and labels thereof. However, such restrictive application of Section 8(b) will
result in the absurd situation in which milk companies and distributors are forbidden to claim to health workers that
their products are substitutes or equivalents of breastmilk, and yet be allowed to display on the containers and
labels of their products the exact opposite message. That askewed interpretation of the Milk Code is precisely what
Section 5(a) thereof seeks to avoid by mandating that all information regarding breastmilk vis-a-visbreastmilk
substitutes be consistent, at the same time giving the government control over planning, provision, design, and
dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a
substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring
circumvention of the protection and promotion of breastfeeding as embodied in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk
Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
infants and intended to reach pregnant women and mothers of infants, shall include clear information on all
the following points: x x x (5) where needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain information about the use of infant formula, they
shall include the social and financial implications of its use; the health hazards of inappropriate foods or
feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant
formula and other breastmilk substitutes. Such materials shall not use any picture or text which may
idealize the use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers thereof. The buyers of
breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about the
likelihood of pathogenic microorganisms being present in infant formula and other related products when these are
prepared and used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to contaminations
and there is as yet no technology that allows production of powdered infant formula that eliminates all forms of
contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding health
hazards including the possibility of contamination with pathogenic microorganisms is in accordance with Section
5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and supplements
and related products cannot be questioned. It is its intervention into the area of advertising, promotion, and
marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products
within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such
materials are duly authorized and approved by an inter-agency committee created herein pursuant to the
applicable standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring (a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following
members is hereby created:
Minister of Health

-------------------

Chairman

Minister of Trade and Industry

-------------------

Member

Minister of Justice

-------------------

Member

Minister of Social Services and Development

-------------------

Member

The members may designate their duly authorized representative to every meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials, whether written,
audio or visual, on products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit the printing,
publication, distribution, exhibition and broadcast of, all advertising promotion or other marketing
materials, whether written, audio or visual, on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers and functions
as well as the performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities
for breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give subliminal messages or impressions that undermine
breastmilk and breastfeeding or otherwise exaggerate 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
arguments on June 19, 2007, that the prohibition under Section 11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute
prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12
provides is not an absolute prohibition because Section 11 while it states and it is entitled prohibition it states
that no advertising, promotion, sponsorship or marketing materials and activities for breast milk substitutes
intended for infants and young children up to 24 months shall be allowed because this is the standard they
tend to convey or give subliminal messages or impression undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section, Section 12,
provides for the inter agency committee that is empowered to process and evaluate all the advertising and
promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the
advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the 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
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and
Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority when it totally
banned advertising and promotion under Section 11 prescribed the total effect rule as well as the content of
materials under Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency
Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk
substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes
intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some
advertising and promotional materials, subject to the standards that we have stated earlier, which are- they
should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly
12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has that power to
evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute
regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and
standards have been set. One of which is that, the Inter-Agency Committee can allow if the advertising and
promotions will not undermine breastmilk and breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or rejection
of advertising, promotional, or other marketing materials under Section 12(a) of the Milk Code, said provision must
be related to Section 6 thereof which in turn provides that the rules and regulations must be "pursuant to the
applicable standards provided for in this Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the
Code, which, at the risk of being repetitious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education

xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
infants and intended to reach pregnant women and mothers of infants, shall include clear information on all
the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial implications of
its use; the health hazards of inappropriate foods of feeding methods; and, in particular, the health hazards
of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not
use any picture or text which may idealize the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within
the scope of this Code shall be restricted to scientific and factual 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
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate
use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable message in
Pilipino or English printed on it, or on a label, which message can not readily become separated from it, and
which shall include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to the need
for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of
inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the
provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding,
for use by families and those involved in the field of infant nutrition. This responsibility shall cover the
planning, provision, design and dissemination of information, and the control thereof, on infant nutrition.
(Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the standards set forth in
Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional, or other
marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as
follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and
should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the
advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should
not directly or indirectly suggest that buying their product would produce better individuals, or resulting in
greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing.
Through that single provision, the DOH exercises control over the information content of advertising, promotional
and marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It
also sets a viable standard against which the IAC may screen such materials before they are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice
and equity," "public convenience and welfare," and "simplicity, economy and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also finds that there is
no inconsistency between the provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk Code, in relation
to Section 8(b)67 of the same Code, allows dissemination of information to health professionals but suchinformation
is restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health
professionals on scientific and factual matters. What it prohibits is the involvement of the manufacturer and
distributor of the products covered by the Code in activities for the promotion, education and production of
Information, Education and Communication (IEC) materials regarding breastfeeding that are intended forwomen
and children. Said provision cannot be construed to encompass even the dissemination of information to health
professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and distributors to extend
assistance in research and in the continuing education of health professionals, while Sections 22 and 32 of the
RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69 of the RIRR prohibiting milk manufacturers'
and distributors' participation in any policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any
policymaking body or entity in relation to the advancement of breastfeeding. The Court finds nothing in said
provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it is the DOH which
shall be principally responsible for the implementation and enforcement of the provisions of said Code. It is
entirely up to the DOH to decide which entities to call upon or allow to be part of policymaking bodies on
breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in any policymaking body in
relation to the advancement of breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving reasearch
assistance and continuing education to health professionals. Section 2270 of the RIRR does not pertain to
research assistance to or the continuing education of health professionals; rather, it deals with breastfeeding
promotion and education for women and children. Nothing in Section 22 of the RIRR prohibits milk companies
from giving assistance for research or continuing education to health professionals; hence, petitioner's argument
against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR provide
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 may accept the assistance. Thus, Sections 9 and
10 of the RIRR imposing limitations on the kind of research done or extent of assistance given by milk companies
are completely in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance, support,
logistics or training to health workers. This provision is within the prerogative given to the DOH under Section
8(e)74 of the Milk Code, which provides that manufacturers and distributors of breastmilk substitutes may assist in
researches, scholarships and the continuing education, of health professionals in accordance with the rules and
regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of
the Milk Code provides that donations may be made by manufacturers and distributors of breastmilk
substitutesupon the request or with the approval of the DOH. The law does not proscribe the refusal of
donations. The Milk Code leaves it purely to the discretion of the DOH whether to request or accept such donations.
The DOH then appropriately exercised its discretion through Section 5175 of the RIRR which sets forth its policy not
to request or approve donations from manufacturers and distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk
companies not covered by the Code should be coursed through the IAC which shall determine whether such
donation should be accepted or refused. As reasoned out by respondents, the DOH is not mandated by the Milk
Code to accept donations. For that matter, no person or entity can be forced to accept a donation. There is,
therefore, no real inconsistency between the RIRR and the law because the Milk Code does not prohibit the DOH
from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk Code,
the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring difference
in said case and the present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics
Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to impose fines and civil

penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the power to review on appeal the
order or decision of the CAA and to determine whether to impose, remit, mitigate, increase or compromise such fine
and civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld the Department
of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for
fines for the commission of prohibited acts. The Court found that nothing in the circular contravened the law
because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix
or impose administrative fines. Thus, without any express grant of power to fix or impose such fines, the DOH
cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its authority by providing for
such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk Code
authorizes the DOH to "cause the prosecution of the violators of this Code and other pertinent laws on products
covered by this Code." Section 13 of the Milk Code provides for the penalties to be imposed on violators of the
provision of the Milk Code or the rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to
this Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year imprisonment
or a fine of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos
(P30,000.00) or both. Should the offense be committed by a juridical person, the chairman of the Board of
Directors, the president, general manager, or the partners and/or the persons directly responsible therefor,
shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker, distributor,
manufacturer, or marketing firm or personnel for the practice of their profession or occupation, or for the
pursuit of their business, may, upon recommendation of the Ministry of Health, be suspended or revoked in
the event of repeated violations of this Code, or of the rules and regulations issued pursuant to this Code.
(Emphasis supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof
inconsistent with these revised rules and implementing regulations are hereby repealed or modified
accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and regulations.
Thus, said provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make
rules and regulations which results in delegated legislation that is within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability and separability of powers.78 Such express grant of rulemaking power necessarily includes the power to amend, revise, alter, or repeal the same.79 This is to allow
administrative agencies flexibility in formulating and adjusting the details and manner by which they are to
implement the provisions of a law,80 in order to make it more responsive to the times. Hence, it is a standard
provision in administrative rules that prior issuances of administrative agencies that are inconsistent therewith are
declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in
contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the RIRR are in
consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and
oppressive, and is offensive to the due process clause of the Constitution, insofar as the same is in
restraint of trade and because a provision therein is inadequate to provide the public with a
comprehensible basis to determine whether or not they have committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that suppress the
trade of milk and, thus, violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to some form of regulation for the
public good. Public interest must be upheld over business interests.90 In Pest Management Association of the
Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut
Authority,despite the fact that "our present Constitution enshrines free enterprise as a policy, it

nonetheless reserves to the government the power to intervene whenever necessary to promote the
general welfare." There can be no question that the unregulated use or proliferation of pesticides would be
hazardous to our environment. Thus, in the aforecited case, the Court declared that "free enterprise does
not call for removal of protective regulations." x x x It must be clearly explained and proven by
competent evidence just exactly how such protective regulation would result in the restraint of
trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers participation in any policymaking
body (Section 4(i)), classes and seminars for women and children (Section 22); the giving of assistance, support
and logistics or training (Section 32); and the giving of donations (Section 52) would unreasonably hamper the trade
of breastmilk substitutes. Petitioner has not established that the proscribed activities are indispensable to the trade
of breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned provisions of the RIRR are
unreasonable and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said
section provides for the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula,
follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any other
description of such nature, including their representatives who promote or otherwise advance their
commercial interests in marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in
the business (whether directly or indirectly) of marketing at the wholesale or retail level a product within the
scope of this Code. A "primary distributor" is a manufacturer's sales agent, representative, national
distributor or broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public or private sector engaged in the business
or function (whether directly or indirectly or through an agent or and entity controlled by or under contract
with it) of manufacturing a products within the scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk company" the entities defined
separately under the Milk Code as "distributor" and "manufacturer." The RIRR also enumerated in Section 5(w) the
products manufactured or distributed by an entity that would qualify it as a "milk company," whereas in the Milk
Code, what is used is the phrase "products within the scope of this Code." Those are the only differences between
the definitions given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the
Court sees no harm in the RIRR providing for just one term to encompass both entities. The definition of "milk
company" in the RIRR and the definitions of "distributor" and "manufacturer" provided for under the Milk Code are
practically the same.
The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about any change
in the treatment or regulation of "distributors" and "manufacturers" of breastmilk substitutes, as defined under the
Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective,
purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public health
and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of trade nor are they violative of the
due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 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.
Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, Carpio-Morales, Azcuna,
Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.

Footnotes
1

Section 11, Rule 3, 1997 Rules of Civil Procedure which provides:

Section 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor non-joinder 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 action and 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, 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

Petition, rollo, p. 12.

G.R. No. 131719, May 25, 2004, 429 SCRA 81.

Id. at 96-97.

G.R. No. 135092, May 4, 2006, 489 SCRA 382.

Id. at 396.

Annex "G", Petitioner's Memorandum dated July 19, 2007.

Annexes "H", "I", and "J" of Petitioner's Memorandum executed by Wyeth Philippines, Inc., Bristol Myers
Squibb (Phil.), Inc., and Abbott Laboratories, Inc., respectively.
10

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.
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.

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.

16

Id. at 421.

17

Merlin M. Magallona, Fundamentals of Public International Law, 2005 Ed., p. 526.

18

Id. at 525.

19

Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, April 19, 2007.

20

Taada v. Angara, 338 Phil. 546, 592 (1997).

21

Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials,
2nd Ed., p. 96.
22

Supra note 13, at 10-13.

23

Minucher v. Court of Appeals, 445 Phil. 250, 269 (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, cultural,
educational, health, and related fields, shall be brought into relationship with the United Nations in
accordance with the provisions of Article 63.

Such agencies thus brought into relationship with the United Nations are hereinafter referred to as
specialized agencies.
25

Article 63. The Economic and Social Council may enter into agreements with any of the agencies referred
to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the
United Nations. Such agreements shall be subject to approval by the General Assembly.
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

Article 18. The functions of the Health Assembly shall be: (a) to determine the policies of the
Organization x x x. (Emphasis supplied)
27

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 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)
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.
30

In Resolution No. 34.22 (May 21, 1981), the WHA, acting under Article 23 of the WHO Constitution,
adopted the ICBMS.
(a) In Resolution No. 35.26 (May 1982), the WHA urged member states to implement the ICBMS as
a "minimum requirement".
(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 maintenance of breastfeeding and
therefore should neither be promoted nor encouraged for us by infants during this period.
(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.
(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.
(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.
(f) In Resolution No. 47.5 (May 9, 1994), the WHA urged member states to ensure that there are no
donations of supplies of breastmilk substitutes and other products covered by the ICMBS in any part
of the health care system.
(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.
(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 Assembly
resolutions state that there 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 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.
(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.
(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.
(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.

32

Article 38. 1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, 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 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
nations, as subsidiary means for the determination of rules of law.
33

Supra note 29.

34

Louis Henkin, et al., International Law, Cases and Materials, 2nd Ed., supra note 21, at 114-136.

35

Supra note 19.

36

90 Phil. 70 (1951).

37

Supra note 15.

38

G.R. No. 159938, March 31, 2006, 486 SCRA 405.

39

Edward Kwakwa, Some Comments on Rulemaking at the World Intellectual Property

Organization,www.law.duke.edu/shell/cite; September 13, 2007, 12:33, citing the 1999 WIPO Resolution
Concerning Provisions on the Protection of Well-Known Marks, 2000 WIPO Recommendation Concerning
Trademark Licenses, and 2001 WIPO Recommendation Concerning Provisions on the Protection of Marks
and other Industrial Property Rights in Signs on the Internet.
40

Id.

41

Supra note 29.

Section 2. Purpose These Revised Rules and Regulations are hereby promulgated to ensure the
provision of safe and adequate nutrition for infants and young children by the promotion, protection and
support of breastfeeding and by ensuring the proper use of breastmilk substitutes, breastmilk supplements
and related products when these are medically indicated and only when necessary, on the basis of
adequate information and through appropriate marketing and distribution. (Underscoring supplied)
42

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). (Underscoring supplied)
44

G.R. No. 144218, July 14, 2006, 495 SCRA 42, 55.

45

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; Tablarin v. Gutierrez, G.R. No. L78164, 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 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.

54

SECTION 6. The General Public and Mothers

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for
products within the scope of this Code shall be printed, published, distributed, exhibited and

broadcast unless such materials are duly authorized and approved by an inter-agency committee
created herein pursuant to the applicable standards provided for in this Code.
(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 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.
(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 products within the scope of this Code. This
provision shall not restrict the establishment of pricing policies and practices intended to provide
products at lower prices on a long-term basis.
(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
shall any other groups, institutions or individuals distribute such gifts, utensils or products to the
general public and mothers.
(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.
(f) Nothing herein contained shall prevent 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.
SECTION 7. Health Care System
(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.
(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).
(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 concerning such products.
(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.
(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 breastmilk substitutes
particularly infant formula. Feeding with infant formula shall be demonstrated only to mothers who
may not be able to breastfeed for medical or other legitimate reasons.
SECTION 8. Health Workers
(a) Health workers shall encourage and promote breastfeeding and shall make themselves familiar
with objectives and consistent information on maternal and infant nutrition, and with their
responsibilities under this Code.
(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).
(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).
(d) Samples of infant formula or other products within the scope of this Code, or of equipment or
utensils for their preparation or use, shall not be provided to health workers except when necessary
for the purpose of professional evaluation or 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.
(e) Manufacturers and distributors of products within the scope of this Code may assist in the
research, scholarships and continuing education, of health professionals, in accordance with the
rules and regulations promulgated by the Ministry of Health.

SECTION 9. Persons employed by Manufacturers and Distributors Personnel employed in marketing

products within the scope of this Code shall not, as part of their job responsibilities, perform educational
functions in relation to pregnant women or mothers of infants.
55

See p. 20.

56

See p. 21.

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.
58

See p. 30.

59

SECTION 10. Containers/Label

xxxx
(d) The term "humanized", "maternalized" or similar terms shall not be used.

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.
60

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:
61

xxxx
(f) The health hazards of unnecessary or improper use of infant formula and other related products
including information that powdered infant formula may contain pathogenic microorganisms and
must be prepared and used appropriately.
62

TSN of the hearing of June 19, 2007, pp. 114-120.

63

TSN of June 19, 2007 hearing, pp. 193-194, 198, 231, 237-240, 295-300.

64

G.R. No. 152214, September 19, 2006, 502 SCRA 295.

65

Id. at 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

SECTION 8. Health Workers. xxxx

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

68

SECTION 8. Health Workers 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.

SECTION 4. Declaration of Principles The following are the underlying principles from which the revised
rules and regulations are premised upon:
69

xxxx

(i) Milk companies, and their representatives, should not form part of any policymaking body or entity
in relation to the advancement of breastfeeding.
70

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.
71

SECTION 9. Research, Ethics Committee, Purpose - The DOH shall ensure that research conducted for
public policy purposes, relating to infant 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 company/person funding the research. In any event, such
research and its findings shall be subjected to independent peer review. x x x.
SECTION 10. Public Disclosure For transparency purposes, a 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.
72

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.
73

74

Supra note 68.

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 (1975).

77

G.R. No. 159149, June 26, 2006, 492 SCRA 638.

78

Smart Communications, Inc. v. National Telecommunications Commission, 456 Phil. 145, 155-156 (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 156.

81

Petitioner's Memorandum.

SECTION 4. Declaration of Principles The following are the underlying principles from which the revised
rules and regulations are premised upon:
82

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, 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; x x x.
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.
85

86

Supra note 70.

87

Supra note 73.

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:
88

(a) 1st violation Warning;

(b) 2nd violation Administrative fine of a minimum of Ten Thousand (P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on the gravity and extent of the violation, including the recall of the
offending product;
(c) 3rd violation Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to One Hundred
Fifty Thousand (P150,000.00) Pesos, depending on the gravity and extent of the violation, and in
addition thereto, the recall of the offending product, and suspension of the Certificate of Product
Registration (CPR);
(d) 4th violation Administrative Fine of a minimum of Two Hundred Thousand (P200,000.00) to Five
Hundred (P500,000.00) Thousand Pesos, depending on the gravity and extent of the violation; and
in addition thereto, the recall of the product, revocation of the CPR, suspension of the License to
Operate (LTO) for one year;
(e) 5th and succeeding repeated violations Administrative Fine of One Million (P1,000,000.00)
Pesos, the recall of the offending product, cancellation of the CPR, revocation of the License to
Operate (LTO) of the company concerned, including the blacklisting of the company to be furnished
the Department of Budget and Management (DBM) and the Department of Trade and Industry (DTI);
(f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day shall be made
for every day the violation continues after having received the order from the IAC or other such
appropriate body, notifying and penalizing the company for the infraction.
For purposes of determining whether or not there is "repeated" violation, each product violation
belonging or owned by a company, including those of their subsidiaries, are deemed to be violations
of the concerned milk company and shall not be based on the specific violating product alone.
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 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 (2003).
91

G.R. No. 156041, February 21, 2007.

G.R. No. L-2662

March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA,
Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S.
HUSSEY and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now charged before
a military Commission convened by the Chief of Staff of the Armed forces of the Philippines with having unlawfully
disregarded and failed "to discharge his duties as such command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the
laws and customs of war" comes before this Court seeking to establish the illegality of Executive Order No. 68 of
the President of the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an
adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners is
charged of 'crimes' not based on law, national and international." Hence petitioner argues "That in view off the
fact that this commission has been empanelled by virtue of an unconstitutional law an illegal order this commission
is without jurisdiction to try herein petitioner."
Second. That the participation in the prosecution of the case against petitioner before the Commission in behalf
of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by the
Supreme Court to practice law in the Philippines is a diminution of our personality as an independent state and their
appointment as prosecutor are a violation of our Constitution for the reason that they are not qualified to practice law
in the Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in
interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial
of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947 This Court
holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that
The Philippines renounces war as an instrument of national policy and adopts the generally accepted
principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day including the Hague
Convention the Geneva Convention and significant precedents of international jurisprudence established by the
United Nation all those person military or civilian who have been guilty of planning preparing or waging a war of
aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the
laws and customs of war, of humanity and civilization are held accountable therefor. Consequently in the
promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity
with the generally accepted and policies of international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all
our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1when we

said
War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war
may remain pending which should be disposed of as in time of war. An importance incident to a conduct of
war is the adoption of measure by the military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measure those enemies who in their attempt to thwart or impede our
military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to
create a military commission for the trial and punishment of war criminals is an aspect of waging war. And in
the language of a writer a military commission has jurisdiction so long as a technical state of war continues.
This includes the period of an armistice or military occupation up to the effective of a treaty of peace and
may extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar
Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of
war namely the trial and punishment of war criminal through the issuance and enforcement of Executive Order No.
68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in
violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first
and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva
conventions form, part of and are wholly based on the generally accepted principals of international law. In facts
these rules and principles were accepted by the two belligerent nation the United State and Japan who were
signatories to the two Convention, Such rule and principles therefore form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the recognition of rule and principle of international law as
continued inn treaties to which our government may have been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the
sovereignty of United States and thus we were equally bound together with the United States and with Japan to the
right and obligation contained in the treaties between the belligerent countries. These rights and obligation were not
erased by our assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the right on
our own of trying and punishing those who committed crimes against crimes against our people. In this connection it
is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect the prosecution of
those charged with the crime of treason committed during then Commonwealth because it is an offense
against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were a Commonwealth
are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the
prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines in
accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our national
sovereignty.
In the first place respondent Military Commission is a special military tribunal governed by a special law and not by
the Rules of court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a valid and constitutional law. There is nothing in said
executive order which requires that counsel appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court. In facts it is common in military tribunals that
counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair and
proper that United States, which has submitted the vindication of crimes against her government and her people to a
tribunal of our nation should be allowed representation in the trial of those very crimes. If there has been any
relinquishment of sovereignty it has not been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow
them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys
Hussey and Port as prosecutors. It is of common knowledge that the United State and its people have been equally
if not more greatly aggrieved by the crimes with which petitioner stands charged before the Military Commission. It
can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its
citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged
which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will not
interfere with the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions
PERFECTO, J., dissenting:
A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for Violation of the
laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice law
were appointed prosecutor representing the American CIC in the trial of the case.
The commission was empanelled under the authority of Executive Order No. 68 of the President of the Philippines
the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also challenged the
personality of Attorneys Hussey and Port to appear as prosecutors before the commission.

The charges against petitioner has been filed since June 26, 1948 in the name of the people of the Philippines as
accusers.
We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It appearing that
they are aliens and have not been authorized by the Supreme Court to practice law there could not be any question
that said person cannot appear as prosecutors in petitioner case as with such appearance they would be practicing
law against the law.
Said violation vanishes however into insignificance at the side of the momentous question involved in the challenge
against the validity of Executive Order No. 68. Said order is challenged on several constitutional ground. To get a
clear idea of the question raised it is necessary to read the whole context of said order which is reproduced as
follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND
REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the Constitution and
laws of the Philippines do hereby establish a National War Crimes Office charged with the responsibility of
accomplishing the speedy trial of all Japanese accused of war crimes committed in the Philippines and
prescribe the rules and regulation such trial.
The National War crimes office is established within the office of the Judge Advocate General of the Army of
the Philippines and shall function under the direction supervision and control of the Judge Advocate
General. It shall proceed to collect from all available sources evidence of war crimes committed in the
Philippines from the commencement of hostilities by Japan in December 1941, maintain a record thereof
and bring about the prompt trial maintain a record thereof and bring about the prompt trial of the accused.
The National War Crimes Office shall maintain direct liaison with the Legal Section General Headquarters,
Supreme Commander for the Allied power and shall exchange with the said Office information and evidence
of war crimes.
The following rules and regulation shall govern the trial off person accused as war criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. person accused as war criminal shall be tried by military commission to be convened by or
under the authority of the Philippines.
II. JURISDICTION
(a) Over Person. Thee military commission appointed hereunder shall have jurisdiction over all persons
charged with war crimes who are in the custody of the convening authority at the time of the trial.
(b) Over Offenses. The military commission established hereunder shall have jurisdiction over all
offenses including but not limited to the following:
(1) The planning preparation initiation or waging of a war of aggression or a war in violation of international
treaties agreement or assurance or participation in a common plan or conspiracy for the accomplishment of
any of the foregoing.
(2) Violation of the laws or customs of war. Such violation shall include but not be limited to murder illtreatment or deportation to slave labor or for other purpose of civilian population of or in occupied territory;
murder or ill-treatment of prisoners of war or internees or person on the seas or elsewhere; improper
treatment of hostage; plunder of public or private property wanton destruction of cities towns or village; or
devastation not justified by military necessity.
(3) Murder extermination enslavement deportation and other inhuman acts committed against civilian
population before or during the war or persecution on political racial or religion ground in executive of or in
connection with any crime defined herein whether or not in violation of the local laws.
III. MEMBERSHIP OF COMMISSIONS
(a) Appointment. The members of each military commission shall be appointed by the President of the
Philippines or under authority delegated by him. Alternates may be appointed by the convening authority.
Such shall attend all session of the commission, and in case of illness or other incapacity of any principal
member, an alternate shall take the place of that member. Any vacancy among the members or alternates,
occurring after a trial has begun, may be filled by the convening authority but the substance of all proceeding
had evidence taken in that case shall be made known to the said new member or alternate. This facts shall
be announced by the president of the commission in open court.
(b) Number of Members. Each commission shall consist of not less than three (3) members.

(c) Qualifications. The convening authority shall appoint to the commission persons whom he determines
to be competent to perform the duties involved and not disqualified by personal interest or prejudice,
provided that no person shall be appointed to hear a case in which he personally investigated or wherein his
presence as a witness is required. One specially qualified member whose ruling is final in so far as concerns
the commission on an objection to the admissibility of evidence offered during the trial.
(d) Voting. Except as to the admissibility of evidence all rulings and finding of the Commission shall be by
majority vote except that conviction and sentence shall be by the affirmative vote of not less than conviction
and sentence shall be by the affirmative vote of not less than two-thirds (2\3) of the member present.
(e) Presiding Member. In the event that the convening authority does not name one of the member as the
presiding member, the senior officer among the member of the Commission present shall preside.
IV. PROSECUTORS
(a) Appointment. The convening authority shall designate one or more person to conduct the prosecution
before each commission.
(b) Duties. The duties of the prosecutor are:
(1) To prepare and present charges and specifications for reference to a commission.
(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred for
trial.
V. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. A Commission shall:
(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges, excluding
irrelevant issues or evidence and preventing any unnecessary delay or interference.
(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor.
(3) Hold public session when otherwise decided by the commission.
(4) Hold each session at such time and place as it shall determine, or as may be directed by the convening
authority.
(b) Rights of the Accused. The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise
the accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel
of his own choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his
defense, and cross-examine each adverse witness who personally appears before the commission.
(4) To have the substance of the charges and specifications, the proceedings and any documentary
evidence translated, when he is unable otherwise to understand them.
(c) Witnesses. The Commission shall have power:
(1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations to
witnesses and other persons and to question witnesses.
(2) To require the production of documents and other evidentiary material.
(3) To delegate the Prosecutors appointed by the convening authority the powers and duties set forth in (1)
and (2) above.
(4) To have evidence taken by a special commissioner appointed by the commission.
(d) Evidence.
(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or
disproving the charge, or such as in the commission's opinion would have probative value in the mind of a
reasonable man. The commission shall apply the rules of evidence and pleading set forth herein with the
greatest liberality to achieve expeditious procedure. In particular, and without limiting in any way the scope
of the foregoing general rules, the following evidence may be admitted:

(a) Any document, irrespective of its classification, which appears to the commission to have been signed or
issued by any officer, department, agency or member of the armed forces of any Government without proof
of the signature or of the issuance of the document.
(b) Any report which appears to the commission to have been signed or issued by the International Red
Cross or a member of any medical service personnel, or by any investigator or intelligence officer, or by any
other person whom commission considers as possessing knowledge of the matters contained in the report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn statements, appearing to the commission to contain
information relating to the charge.
(e) A copy of any document or other secondary evidence of the contents, if the original is not immediately
available.
(2) The commission shall take judicial notice of facts of common knowledge, official government documents
of any nation, and the proceedings, records and findings of military or other agencies of any of the United
Nation.
(3) A commission may require the prosecution and the defense to make a preliminary offer of proof
whereupon the commission may rule in advance on the admissibility of such evidence.
(4) The official position of the accused shall not absolve him from responsibility nor be considered in
mitigation of punishment. Further action pursuant to an order of the accused's superior, or of his
Government, shall not constitute a defense, but may be considered in mitigation of punishment if the
commission determines that justice so requires.
(5) All purposed confessions or statements of the accused shall bee admissible in evidence without any
showing that they were voluntarily made. If it is shown that such confession or statement was procured by
mean which the commission believe to have been of such a character that may have caused the accused to
make a false statement the commission may strike out or disregard any such portion thereof as was so
procured.
(e) Trial Procedure. The proceedings of each trial shall be conducted substantially as follows unless
modified by the commission to suit the particular circumstances:
(1) Each charge and specification shall be read or its substance stated in open court.
(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."
(3) The prosecution shall make its opening statement."(4) The presiding member may at this or any other
time require the prosecutor to state what evidence he proposes to submit to the commission and the
commission thereupon may rule upon the admissibility of such evidence.
(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the
case for the prosecution, the commission may, on motion of the defense for a finding of not guilty, consider
and rule whether he evidence before the commission may defer action on any such motion and permit or
require the prosecution to reopen its case and produce any further available evidence.
(5) The defense may make an opening statement prior to presenting its case. The presiding member may, at
this any other time require the defense to state what evidence it proposes to submit to the commission
where upon the commission may rule upon the admissibility of such evidence.
(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the
prosecution and defense may introduce such evidence in rebuttal as the commission may rule as being
admissible.
(7) The defense and thereafter the prosecution shall address the commission.
(8) The commission thereafter shall consider the case in closed session and unless otherwise directed by
the convening authority, announce in open court its judgment and sentence if any. The commission may
state the reason on which judgment is based.
( f ) Record of Proceedings. Each commission shall make a separate record of its proceeding in the trial
of each case brought before it. The record shall be prepared by the prosecutor under the direction of the
commission and submitted to the defense counsel. The commission shall be responsible for its accuracy.
Such record, certified by the presiding member of the commission or his successor, shall be delivered to the
convening authority as soon as possible after the trial.
(g) Sentence. The commission may sentence an accused, upon conviction to death by hanging or
shooting, imprisonment for life or for any less term, fine or such other punishment as the commission shall
determine to be proper.

(h) Approval of Sentence. No. sentence of a military commission shall be carried into effect until approved
by the chief off Staff: Provided, That no sentence of death or life imprisonment shall be carried into
execution until confirmed by the President of the Philippines. For the purpose of his review the Chief of Staff
shall create a Board of Review to be composed of not more than three officers none of whom shall be on
duty with or assigned to the Judge Advocate General's Office. The Chief of Staff shall have authority to
approve, mitigate remit in whole or in part, commute, suspend, reduce or otherwise alter the sentence
imposed, or (without prejudice to the accused) remand the case for rehearing before a new military
commission; but he shall not have authority to increase the severity of the sentence. Except as herein
otherwise provided the judgment and sentence of a commission shall final and not subject to review by any
other tribunal.
VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall adopt rules and forms to govern its procedure,
not inconsistent with the provision of this Order, or such rules and forms as may be prescribed by the
convening authority]or by the President of the Philippines.
VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the appropriations
for the Army of the Philippines for use by the National War Crimes Office in the accomplishment of its
mission as hereinabove set forth, and shall be expended in accordance with the recommendation of the
Judge Advocate General as approved by the President. The buildings, fixtures, installations, messing, and
billeting equipment and other property herefore used by then Legal Section, Manila Branch, of the General
Headquarters, Supreme Commander for the Allied Power, which will be turned over by the United States
Army to the Philippines Government through the Foreign Liquidation Commission and the Surplus Property
Commission are hereby specification reserved for use off the National War Crimes Office.
Executive Order No. 64, dated August 16, 1945, is hereby repealed.
Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and forty-seven,
and of the Independence of the Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMILIO ABELLO
Chief of the Executive Office
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional enactment.
The first question that is trust at our face spearheading a group of other no less important question, is whether or not
the President of the Philippines may exercise the legislative power expressly vested in Congress by the
Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a Senate and
House of Representatives. (Section 1, Article VI.)
While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies
other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to the
constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to the veto
power of the President of the President of the Philippines, to the specific provision which allow the president of the
Philippines to suspend the privileges of the writ of habeas corpus and to place any part of the Philippines under
martial law, and to the rule-making power expressly vested by the Constitution in the Supreme Court.
There cannot be any question that the member of the Constitutional Convention were believers in the tripartite
system of government as originally enunciated by Aristotle, further elaborated by Montequieu and accepted and
practiced by modern democracies, especially the United State of America, whose Constitution, after which ours has
been patterned, has allocated the three power of government legislative, executive, judicial to distinct and
separate department of government.
Because the power vested by our Constitution to the several department of the government are in the nature of
grants, not recognition of pre-existing power, no department of government may exercise any power or authority not
expressly granted by the Constitution or by law by virtue express authority of the Constitution.
Executive Order No. 68 establishes a National War Crimes Office and the power to establish government office is
essentially legislative.

The order provides that person accused as war criminals shall be tried by military commissions. Whether such a
provision is substantive or adjective, it is clearly legislative in nature. It confers upon military commissions
jurisdiction to try all persons charge with war crimes. The power to define and allocate jurisdiction for the
prosecution of person accused of any crime is exclusively vested by the Constitution in Congress. .
It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject constitutes a
usurpation of the rule-making power vested by Constitution in the Supreme Court.
It authorized military commission to adopt additional rule of procedure. If the President of the Philippines cannot
exercise the rule -making power vested by the Constitution in the Supreme Court, he cannot, with more reason,
delegate that power to military commission.
It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by the said
Executive Order No. 68. This constitutes another usurpation of legislative power as the power to vote appropriations
belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines usurped
power expressly vested by the Constitution in Congress and in the Supreme Court.
Challenged to show the constitutional or legal authority under which the President issued Executive Order No. 68,
respondent could not give any definite answer. They attempted, however, to suggest that the President of the
Philippines issued Executive Order No. 68 under the emergency power granted to him by Commonwealth Act No.
600, as amended by Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which are transcribed
below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE
PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war in many parts of the world has created a national emergency which
makes it necessary to invest the President of the Philippines with extraordinary power in order to safeguard
the integrity of the Philippines and to insure the tranquility of its inhabitants, by suppressing espionage,
lawlessness, and all subversive to the people adequate shelter and clothing and sufficient food supply, and
by providing means for the speedy evacuation of the civilian population the establishment of an air protective
service and the organization of volunteer guard units, and to adopt such other measures as he may deem
necessary for the interest of the public. To carry out this policy the President is authorized to promulgate
rules and regulations which shall have the force and effect off law until the date of adjournment of the next
regulation which shall have the force and effect of law until the date of adjournment of the next regular
session of the First Congress of the Philippines, unless sooner amended or repealed by the Congress of
Philippines. Such rules and regulation may embrace the following objects: (1) to suppress espionage and
other subversive activities; (2) to require all able-bodied citizens (a) when not engaged in any lawful
occupation, to engage in farming or other productive activities or (b) to perform such services as may bee
necessary in the public interest; (3) to take over farm lands in order to prevent or shortage of crops and
hunger and destitution; (4) to take over industrial establishment in order to insure adequate production,
controlling wages and profits therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the
unwarranted suspension of work in productive enterprises or in the interest of national security; (6) to
regulate the normal hours of work for wage-earning and salaried employees in industrial or business
undertakings of all kinds; (7) to insure an even distribution of labor among the productive enterprises; (8) to
commandership and other means of transportation in order to maintain, as much as possible, adequate and
continued transportation facilities; (9) to requisition and take over any public service or enterprise for use or
operation by the Government;(10) to regulate rents and the prices of articles or commodities of prime
necessity, both imported and locally produced or manufactured; and (11) to prevent, locally or generally,
scarcity, monopolization, hoarding injurious speculations, and private control affecting the supply,
distribution and movement of foods, clothing, fuel, fertilizer, chemical, building, material, implements,
machinery, and equipment required in agriculture and industry, with power to requisition these commodities
subject to the payment of just compensation. (As amended by Com. Act No. 620.)
SEC. 2. For the purpose of administering this Act and carrying out its objective, the President may designate
any officer, without additional compensation, or any department, bureau, office, or instrumentality of the
National Government.
SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of this Act
or any of the rules or regulations promulgated by the President under the authority of section one of this Act
shall be punished by imprisonment of not more than ten years or by a fine of not more than ten thousand
pesos, or by both. If such violation is committed by a firm or corporation, the manager, managing director, or
person charge with the management of the business of such firm, or corporation shall be criminally
responsible therefor.

SEC. 4. The President shall report to the national Assembly within the first ten days from the date of the
opening of its next regular session whatever action has been taken by him under the authority herein
granted.
SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts as may be
necessary from the sum appropriated under section five Commonwealth Act Numbered four hundred and
ninety-eight.
SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to be
unconstitutional and void, such declaration shall not invalidate the remainder of this Act.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING
THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND
REGULATIONS TO MEET SUCH EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTION 1. The existed of war between the United State and other countries of Europe and Asia, which
involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to
meet the resulting emergency.
SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is hereby
authorized, during the existence of the emergency, to promulgate such rules and regulation as he may deem
necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, among other
things, empowered (a) to transfer the seat of the Government or any of its subdivisions, branches,
department, offices, agencies or instrumentalities; (b) to reorganize the Government of the Commonwealth
including the determination of the order of precedence of the heads of the Executive Department; (c) to
create new subdivision, branches, departments, offices, agency or instrumentalities of government and to
abolish any of those already existing; (d) to continue in force laws and appropriation which would lapse or
otherwise became inoperative, and to modify or suspend the operation or application of those of an
administrative character; (e) to imposed new taxes or to increase, reduce, suspend, or abolish those in
existence; (f) to raise funds through the issuance of bonds or otherwise, and to authorize the expensive of
the proceeds thereof; (g) to authorize the National, provincial, city or municipal governments to incur in
overdrafts for purposes that he may approve; (h) to declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other power as he may deem necessary to enable the
Government to fulfill its responsibilities and to maintain and enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated by him
under the power herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated hereunder
shall be in force and effect until the Congress of the Philippines shall otherwise provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said Acts had
elapsed upon the liberation of the Philippines form the Japanese forces or, at the latest, when the surrender of
Japan was signed in Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in their
consideration and passage, not only as one of the members of said legislative body as chairman of the Committee
on Third Reading population Known as the "Little Senate." We are, therefore in a position to state that said
measures were enacted by the second national Assembly for the purpose of facing the emergency of impending war
and of the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said
extraordinary measures, by which under the exceptional circumstances then prevailing legislative power were
delegated to the President of the Philippines, by virtue of the following provisions of the Constitution:
In time of war or other national emergency, the Congress may by law authorize the President, for a limited
period and subject to such restrictions as it may prescribe to promulgate rules and regulations to carry out
declared national policy. (Article VI, section 26.)
It has never been the purpose of the National Assembly to extend the delegation beyond the emergency created by
the war as to extend it farther would be violative of the express provision of the Constitution. We are of the opinion
that there is no doubt on this question.; but if there could still be any the same should be resolved in favor of the
presumption that the National Assembly did not intend to violate the fundamental law.

The absurdity of the contention that the emergency Acts continued in effect even after the surrender of Japan can
not be gainsaid. Only a few months after liberation and even before the surrender of Japan, or since the middle of
1945, the Congress started to function normally. In the hypothesis that the contention can prevail, then, since 1945,
that is, four years ago, even after the Commonwealth was already replaced by the Republic of the Philippines with
the proclamation of our Independence, two district, separate and independence legislative organs, Congress and
the President of the Philippines would have been and would continue enacting laws, the former to enact laws of
every nature including those of emergency character, and the latter to enact laws, in the form of executive orders,
under the so-called emergency powers. The situation would be pregnant with dangers to peace and order to the
rights and liberties of the people and to Philippines democracy.
Should there be any disagreement between Congress and the President of the Philippines, a possibility that no one
can dispute the President of the Philippines may take advantage of he long recess of Congress (two-thirds of every
year ) to repeal and overrule legislative enactments of Congress, and may set up a veritable system of dictatorship,
absolutely repugnant to the letter and spirit of the Constitution.
Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees of
the due process and equal protection of the law. It is especially so, because it permit the admission of many kinds
evidence by which no innocent person can afford to get acquittal and by which it is impossible to determine whether
an accused is guilty or not beyond all reasonable doubt.
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation governing the trial of
twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of the United State Armed Forces in
Western Pacific, for the purpose of trying among other, General Yamashita and Homma. What we said in our
concurring and dissenting opinion to the decision promulgated on December 19, 1945, in the Yamashita case, L129, and in our concurring and dissenting opinion to the resolution of January 23, 1946 in disposing the Homma
case, L-244, are perfectly applicable to the offensive rules of evidence in Executive Order No. 68. Said rules of
evidence are repugnant to conscience as under them no justice can expected.
For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare
Executive Order No. 68 null and void and to grant petition.

G.R. No. L-21897

October 22, 1963

RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of Defense,
PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and Industry,
and SALVADOR MARINO, Secretary of Justice, respondents.
Ramon A. Gonzales in his own behalf as petitioner.
Office of the Solicitor General and Estanislao Fernandez for respondents.
CONCEPCION, J.:
This is an original action for prohibition with preliminary injunction.
It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the importation of 67,000
tons of foreign rice to be purchased from private sources, and created a rice procurement committee composed of
the other respondents herein1 for the implementation of said proposed importation. Thereupon, or September 25,
1963, herein petitioner, Ramon A. Gonzales a rice planter, and president of the Iloilo Palay and Corn Planters
Association, whose members are, likewise, engaged in the production of rice and corn filed the petition herein,
averring that, in making or attempting to make said importation of foreign rice, the aforementioned respondents "are
acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals or
amends Republic Act No. 220 explicitly prohibits the importation of rice and corn "the Rice and Corn
Administration or any other government agency;" that petitioner has no other plain, speedy and adequate remedy in
the ordinary course of law; and that a preliminary injunction is necessary for the preservation of the rights of the
parties during the pendency this case and to prevent the judgment therein from coming ineffectual. Petitioner
prayed, therefore, that said petition be given due course; that a writ of preliminary injunction be forthwith issued
restraining respondent their agents or representatives from implementing the decision of the Executive Secretary to
import the aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction
permanent.
Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's pray for a
writ of preliminary injunction was set for hearing at which both parties appeared and argued orally. Moreover, a
memorandum was filed, shortly thereafter, by the respondents. Considering, later on, that the resolution said
incident may require some pronouncements that would be more appropriate in a decision on the merits of the case,
the same was set for hearing on the merits thereafter. The parties, however, waived the right to argue orally,
although counsel for respondents filed their memoranda.
I. Sufficiency of petitioner's interest.
Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest to file the
petition herein and secure the relief therein prayed for. We find no merit in this pretense. Apart from prohibiting the
importation of rice and corn "by the Rice and Corn Administration or any other government agency". Republic Act
No. 3452 declares, in Section 1 thereof, that "the policy of the Government" is to "engage in the purchase of these
basic foods directly from those tenants, farmers, growers, producers and landowners in the Philippines who wish to
dispose of their products at a price that will afford them a fair and just return for their labor and capital investment. ...
." Pursuant to this provision, petitioner, as a planter with a rice land of substantial proportion,2 is entitled to a chance
to sell to the Government the rice it now seeks to buy abroad. Moreover, since the purchase of said commodity will
have to be effected with public funds mainly raised by taxation, and as a rice producer and landowner petitioner
must necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek judicial assistance
with a view to restraining what he believes to be an attempt to unlawfully disburse said funds.
II. Exhaustion of administrative remedies.
Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all administrative
remedies available to him before coming to court". We have already held, however, that the principle requiring the
previous exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal
one",3 or where the controverted act is "patently illegal" or was performed without jurisdiction or in excess of
jurisdiction,4 or where the respondent is a department secretary, whose acts as an alter-ego of the President bear
the implied or assumed approval of the latter,5 unless actually disapproved by him,6 or where there are
circumstances indicating the urgency of judicial intervention.7 The case at bar fails under each one of the foregoing
exceptions to the general rule. Respondents' contention is, therefore, untenable.
III. Merits of petitioner's cause of action.
Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed importation in
question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by the President as
Commander-in-Chief "for military stock pile purposes" in the exercise of his alleged authority under Section 2 of
Commonwealth Act No. 1;8 that in cases of necessity, the President "or his subordinates may take such preventive
measure for the restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of our
armed forces, "the President ... is duty-bound to prepare for the challenge of threats of war or emergency
without waiting for any special authority".
Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by petitioner herein - on
which our view need not be expressed we are unanimously of the opinion - assuming that said Republic Act No.

2207 is still in force that the two Acts are applicable to the proposed importation in question because the
language of said laws is such as to include within the purview thereof all importations of rice and corn into the
Philippines". Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association, corporation
orgovernment agency to import rice and corn into any point in the Philippines", although, by way of exception, it
adds, that "the President of the Philippines may authorize the importation of these commodities through any
government agency that he may designate", is the conditions prescribed in Section 2 of said Act are present.
Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any government agency"
from importing rice and corn.
Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting the importation
of rice and corn by any "government agency", do not apply to importations "made by the Government itself",
because the latter is not a "government agency". This theory is devoid of merit. The Department of National Defense
and the Armed Forces of the Philippines, as well as respondents herein, and each and every officer and employee
of our Government, our government agencies and/or agents. The applicability of said laws even to importations by
the Government as such, becomes more apparent when we consider that:
1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the Philippines"and,
hence, by or on behalf of the Government of the Philippines;
2. Immediately after enjoining the Rice and Corn administration and any other government agency from importing
rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice and corn is left to private
parties upon payment of the corresponding taxes", thus indicating that only "private parties" may import rice under
its provisions; and
3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5) years for
those who shall violate any provision of Republic Act No. 3452 or any rule and regulation promulgated pursuant
thereto, Section 15 of said Act provides that "if the offender is a public official and/or employees", he shall be subject
to the additional penalty specified therein. A public official is an officer of the Government itself, as distinguished
from officers or employees of instrumentalities of the Government. Hence, the duly authorized acts of the former are
those of the Government, unlike those of a government instrumentality which may have a personality of its own,
distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this
respect, even more explicit. Section 3 thereof provides a similar additional penalty for any "officer or employee of the
Government" who "violates, abets or tolerates the violation of any provision" of said Act. Hence, the intent to apply
the same to transactions made by the very government is patent.
Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in Commonwealth
Act No. 138, entitled "An Act to give native products and domestic entities the preference in the purchase of
articles for the Government." Pursuant to Section 1 thereof:
The Purchase and Equipment Division of the Government of the Philippines and other officers and
employees of the municipal and provincial governments and the Government of the Philippines and of
chartered cities, boards, commissions, bureaus, departments, offices, agencies, branches, and bodies of
any description, including government-owned companies, authorized to requisition, purchase, or contract or
make disbursements for articles, materials, and supplies for public use, public buildings, or public works
shall give preference to materials ... produced ... in the Philippines or in the United States, and to domestic
entities, subject to the conditions hereinbelow specified. (Emphasis supplied.)
Under this provision, in all purchases by the Government, including those made by and/or for the armed
forces,preference shall be given to materials produced in the Philippines. The importation involved in the case at bar
violates this general policy of our Government, aside from the provisions of Republic Acts Nos. 2207 and 3452.
The attempt to justify the proposed importation by invoking reasons of national security predicated upon the
"worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia problem" - and the
alleged powers of the President as Commander-in-Chief of all armed forces in the Philippines, under Section 2 of
the National Defense Act (Commonwealth Act No. 1), overlooks the fact that the protection of local planters of rice
and corn in a manner that would foster and accelerate self-sufficiency in the local production of said commodities
constitutes a factor that is vital to our ability to meet possible national emergency. Even if the intent in importing
goods in anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if the
importation were so made as to discourage our farmers from engaging in the production of rice.
Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is within the
purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn Administration "to
accumulate stocks as a national reserve in such quantities as it may deem proper and necessary to meet any
contingencies". Moreover, it ordains that "the buffer stocks held as a national reserve ... be deposited by the
administration throughout the country under the proper dispersal plans ... and may be released only upon the
occurrence of calamities or emergencies ...". (Emphasis applied.)
Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much, are not selfexecutory. They merely outline the general objectives of said legislation. The means for the attainment of those
objectives are subject to congressional legislation. Thus, the conditions under which the services of citizens, as
indicated in said Section 2, may be availed of, are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth
Act No. 1. Similarly, Section 5 thereof specifies the manner in which resources necessary for our national defense
may be secured by the Government of the Philippines, but only "during a national mobilization",9which does not
exist. Inferentially, therefore, in the absence of a national mobilization, said resources shall be produced in such

manner as Congress may by other laws provide from time to time. Insofar as rice and corn are concerned, Republic
Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.
Respondents cite Corwin in support of their pretense, but in vain. An examination of the work cited10 shows that
Corwin referred to the powers of the President during "war time"11 or when he has placed the country or a part
thereof under "martial law".12 Since neither condition obtains in the case at bar, said work merely proves that
respondents' theory, if accepted, would, in effect, place the Philippines under martial law, without a declaration of
the Executive to that effect. What is worse, it would keep us perpetually under martial law.
It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and 3452, it should,
nevertheless, be permitted because "it redounds to the benefit of the people". Salus populi est suprema lex, it is
said.
If there were a local shortage of rice, the argument might have some value. But the respondents, as officials of this
Government, have expressly affirmed again and again that there is no rice shortage. And the importation is
avowedly for stockpile of the Army not the civilian population.
But let us follow the respondents' trend of thought. It has a more serious implication that appears on the surface. It
implies that if an executive officer believes that compliance with a certain statute will not benefit the people, he is at
liberty to disregard it. That idea must be rejected - we still live under a rule of law.
And then, "the people" are either producers or consumers. Now as respondents explicitly admit Republic Acts
Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers and consumers, i.e., the people,
it must follow that the welfare of the people lies precisely in the compliance with said Acts.
It is not for respondent executive officers now to set their own opinions against that of the Legislature, and adopt
means or ways to set those Acts at naught. Anyway, those laws permit importation but under certain conditions,
which have not been, and should be complied with.
IV. The contracts with Vietnam and Burma
It is lastly contended that the Government of the Philippines has already entered into two (2) contracts for the
Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma; that these contracts
constitute valid executive agreements under international law; that such agreements became binding effective upon
the signing thereof by representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207
and 3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail, because, if a treaty
and a statute are inconsistent with each other, the conflict must be resolved under the American jurisprudence
in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the Executive
relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned
contracts have already been consummated, the Government of the Philippines having already paid the price of the
rice involved therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no merit
in this pretense.
The Court is not satisfied that the status of said tracts as alleged executive agreements has been sufficiently
established. The parties to said contracts do not pear to have regarded the same as executive agreements. But,
even assuming that said contracts may properly considered as executive agreements, the same are unlawful, as
well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of
Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional system enter
into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a
transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the
Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative
powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have
acquired the status of law, by indirectly repealing the same through an executive agreement providing for the
performance of the very act prohibited by said laws.
The American theory to the effect that, in the event of conflict between a treaty and a statute, the one which is latest
in point of time shall prevail, is not applicable to the case at bar, for respondents not only admit, but, alsoinsist that
the contracts adverted to are not treaties. Said theory may be justified upon the ground that treaties to which the
United States is signatory require the advice and consent of its Senate, and, hence, of a branch of the legislative
department. No such justification can be given as regards executive agreements not authorized by previous
legislation, without completely upsetting the principle of separation of powers and the system of checks and
balances which are fundamental in our constitutional set up and that of the United States.
As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that
the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII
thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm
on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of
inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive
order or regulation is in question". In other words, our Constitution authorizes the nullification of a treaty, not only
when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.
The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render this case
academic, Republic Act No. 2207 enjoins our Government not from entering into contracts for the purchase of rice,
but from importing rice, except under the conditions Prescribed in said Act. Upon the other hand, Republic Act No.
3452 has two (2) main features, namely: (a) it requires the Government to purchase rice and corn directlyfrom our

local planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and leaves such
importations to private parties. The pivotal issue in this case is whether the proposed importation which has not
been consummated as yet is legally feasible.
Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government to default in
the performance of such obligations as it may have contracted with the sellers of the rice in question, because,
aside from the fact that said obligations may be complied with without importing the commodity into the Philippines,
the proposed importation may still be legalized by complying with the provisions of the aforementioned laws.
V. The writ of preliminary injunction.
The members of the Court have divergent opinions on the question whether or not respondents herein should be
enjoined from implementing the aforementioned proposed importation. However, the majority favors the negative
view, for which reason the injunction prayed for cannot be granted.
WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and has no power
to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; said importation
is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction
prayed for must be and is, accordingly denied. It is so ordered.
Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.

Separate Opinions
BAUTISTA ANGELO, J., concurring:
Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any person, association,
corporation or government agency to import rice and corn into any point in the Philippines. The exception is if there
is an existing or imminent shortage of such commodity of much gravity as to constitute national emergency in which
case an importation may be authorized by the President when so certified by the National Economic Council.
However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of rice and corn
canonly be made by private parties thereby prohibiting from doing so the Rice and Corn Administration or any other
government agency. Republic Act 3452 does not expressly repeal Republic Act 2207, but only repeals or modified
those parts thereof that are inconsistent with its provisions. The question that now arises is: Has the enactment of
Republic Act 3452 the effect of prohibiting completely the government from importing rice and corn into the
Philippines?
My answer is in the negative. Since this Act does not in any manner provide for the importation of rice and corn in
case of national emergency, the provision of the former law on that matter should stand, for that is not inconsistent
with any provision embodied in Republic Act 3452. The Rice and Corn Administration, or any other government
agency, may therefore still import rice and corn into the Philippines as provided in Republic Act 2207 if there is a
declared national emergency.
The next question that arises is: Can the government authorize the importation of rice and corn regardless of
Republic Act 2207 if that is authorized by the President as Commander-in-Chief of the Philippine Army as a military
precautionary measure for military stockpile?
Respondents answer this question in the affirmative. They advance the argument that it is the President's duty to
see to it that the Armed Forces of the Philippines are geared to the defenses of the country as well as to the
fulfillment of our international commitments in Southeast Asia in the event the peace and security of the area are in
danger. The stockpiling of rice, they aver, is an essential requirement of defense preparation in view of the limited
local supply and the probable disruption of trade and commerce with outside countries in the event of armed
hostilities, and this military precautionary measure is necessary because of the unsettled conditions in the Southeast
Asia bordering on actual threats of armed conflicts as evaluated by the Intelligence Service of the Military
Department of our Government. This advocacy, they contend, finds support in the national defense policy embodied
in Section 2 of our National Defense Act (Commonwealth Act No. 1), which provides:
(a) The preservation of the State is the obligation of every citizen. The security of the Philippines and the
freedom, independence and perpetual neutrality of the Philippine Republic shall be guaranteed by the
employment of all citizens, without distinction of sex or age, and all resources.
(b) The employment of the nation's citizens and resources for national defense shall be effected by a
national mobilization.
(c) The national mobilization shall include the execution of all measures necessary to pass from a peace to a
war footing.

(d) The civil authority shall always be supreme. The President of the Philippines as the Commander-in-Chief
of all military forces, shall be responsible that mobilization measures are prepared at all times.(Emphasis
supplied)
Indeed, I find in that declaration of policy that the security of the Philippines and its freedom constitutes the core of
the preservation of our State which is the basic duty of every citizen and that to secure which it is enjoined that the
President employ all the resources at his command. But over and above all that power and duty, fundamental as
they may seem, there is the injunction that the civil authority shall always be supreme. This injunction can only mean
that while all precautions should be taken to insure the security and preservation of the State and to this effect the
employment of all resources may be resorted to, the action must always be taken within the framework of the civil
authority. Military authority should be harmonized and coordinated with civil authority, the only exception being when
the law clearly ordains otherwise. Neither Republic Act 2207, nor Republic Act 3452, contains any exception in favor
of military action concerning importation of rice and corn. An exception must be strictly construed.
A distinction is made between the government and government agency in an attempt to take the former out of the
operation of Republic Act 2207. I disagree. The Government of the Republic of the Philippines under the Revised
Administrative Code refers to that entity through which the functions of government are exercised, including the
various arms through which political authority is made effective whether they be provincial, municipal or other form
of local government, whereas a government instrumentality refers to corporations owned or controlled by the
government to promote certain aspects of the economic life of our people. A government agency, therefore, must
necessarily refer to the government itself of the Republic, as distinguished from any government instrumentality
which has a personality distinct and separate from it (Section 2).
The important point to determine, however, is whether we should enjoin respondents from carrying out the
importation of the rice which according to the record has been authorized to be imported on government to
government level, it appearing that the arrangement to this effect has already been concluded, the only thing lacking
being its implementation. This is evident from the manifestation submitted by the Solicitor General wherein it
appears that the contract for the purchase of 47,000 tons of rice from had been sign on October 5, 1963, and for the
purchase of 20,000 tons from Burma on October 8, 1963, by the authorized representatives of both our government
and the governments of Vietnam and Burma, respectively. If it is true that, our government has already made a
formal commitment with the selling countries there arises the question as to whether the act can still be impeded at
this stage of the negotiations. Though on this score there is a divergence of opinion, it is gratifying to note that the
majority has expressed itself against it. This is a plausible attitude for, had the writ been issued, our government
would have been placed in a predicament where, as a necessary consequence, it would have to repudiate a duly
formalized agreement to its great embarrassment and loss of face. This was avoided by the judicial statesmanship
evinced by the Court.

BARRERA, J., concurring:

Because of possible complications that might be aggravated by misrepresentation of the true nature and scope of
the case before this Court, it is well to restate as clearly as possible, the real and only issue presented by the
respondents representing the government.
From the answer filed by the Solicitor General, in behalf of respondents, we quote:
The importation of the rice in question by the Armed Forces of the Philippines is for military
stockpilingauthorized by the President pursuant to his inherent power as commander-in-chief and as a
military precautionary measure in view the worsening situation in Laos and Vietnam and, it may added, the
recent, tension created by the Malaysia problem (Answer, p. 2; emphasis supplied.)
During the oral argument, Senator Fernandez, appealing in behalf of the respondents, likewise reiterated the
imported rice was for military stockpiling, and which he admitted that some of it went to the Rice and Corn
Administration, he emphasized again and again that rice was not intended for the RCA for distribution to people, as
there was no shortage of rice for that purpose but it was only exchanged for palay because this could better
preserved.
From the memorandum filed thereafter by the Solicits General, again the claim was made:
We respectfully reiterate the arguments in our answer dated October 4, 1963 that the importation of rice
sought be enjoined in this petition is in the exercise of the authority vested in the President of the Philippines
as Commander-in-Chief of the Armed Forces, as a measure of military preparedness demanded by a real
and actual threat of emergency in the South East Asian countries. (p. 1, Emphasis supplied.)
xxx

xxx

xxx

It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to show the necessity
for the stockpiling of rice for army purposes, which is the very reason for the importation.
xxx

xxx

xxx

As it is, the importation in question is being made by the Republic of the Philippines for its own use, and the
rice is not supposed to be poured into the open market as to affect the price to be paid by the public. (p. 4,
Emphasis supplied.)
xxx

xxx

xxx

What we do contend is that the law, for want of express and clear provision to that effect, does not include in
its prohibition importation by the Government of rice for its own use and not for the consuming public,
regardless of whether there is or there is no emergency. (p. 5, Emphasis supplied.)
From the above, it not only appears but is evident that the respondents were not concerned with the present rice
situation confronting the consuming public, but were solely and exclusively after the stockpiling of rice for
thefuture use of the army. The issue, therefore, in which the Government was interested is not whether rice is
imported to give the people a bigger or greater supply to maintain the price at P.80 per ganta for, to quote again
their contention: "the rice is not supposed to be poured into the open market to affect the price to be paid by the
public, as it is not for the consuming public, regardless of whether there is or there is no emergency", but whether
rice can legally be imported by the Armed Forces of the Philippines avowedly for its future use, notwithstanding the
prohibitory provisions of Republic Acts Nos. 2207 and 3452. The majority opinion ably sets forth the reasons why
this Court can not accept the contention of the respondents that this importation is beyond and outside the operation
of these statutes. I can only emphasize that I see in the theory advanced by the Solicitor General a dangerous trend
that because the policies enunciated in the cited laws are for the protection of the producers and the consumers,
the army is removed from their application. To adopt this theory is to proclaim the existence in the Philippines of
three economic groups or classes: the producers, the consumers, and the Armed Forces of the Philippines. What is
more portentous is the effect to equate the army with the Government itself.
Then again, the importation of this rice for military stockpiling is sought to be justified by the alleged threat of
emergency in the Southeast Asian countries. But the existence of this supposed threat was unilaterally determined
by the Department of National Defense alone. We recall that there exists a body called the National Security Council
in which are represented the Executive as well as the Legislative department. In it sit not only members of the party
in power but of the opposition as well. To our knowledge, this is the highest consultative body which deliberates
precisely in times of emergency threatening to affect the security of the state. The democratic composition of this
council is to guarantee that its deliberations would be non-partisan and only the best interests of the nation will be
considered. Being a deliberative body, it insures against precipitate action. This is as it should be. Otherwise, in
these days of ever present cold war, any change or development in the political climate in any region of the world is
apt to be taken as an excuse for the military to conjure up a crisis or emergency and thereupon attempt to override
our laws and legal processes, and imperceptibly institute some kind of martial law on the pretext of precautionary
mobilization measure avowedly in the interest of the security of the state. One need not, be too imaginative to
perceive a hint of this in the present case.
The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the difficult and delicate
task it had to discharge. Its position is liable to be exploited by some for their own purposes by claiming and making
it appear that the Court is unmindful of the plight of our people during these days of hardship; that it preferred to give
substance to the "niceties of the law than heed the needs of the people. Our answer is that the Court was left no
alternative. It had, in compliance with its duty, to decide the case upon the facts presented to it. The respondents,
representing the administration, steadfastly maintained and insisted that there is no rice shortage; that the imported
rice is not for the consuming public and is not supposed to be placed in the open market to affect the price to be
paid by the public; that it is solely for stockpiling of the army for future use as a measure of mobilization in the face
of what the Department of National Defense unilaterally deemed a threatened armed conflict in Southeast Asia.
Confronted with these facts upon, which the Government has built and rested its case, we have searched in vain for
legal authority or cogent reasons to justify this importation made admittedly contrary to the provisions of Republic
Acts Nos. 2207 and 3452. I say admittedly, because respondents never as much as pretended that the importation
fulfills the conditions specified in these laws, but limited themselves to the contention, which is their sole defense
that this importation does not fall within the scope of said laws. In our view, however, the laws are clear. The laws
are comprehensive and their application does not admit of any exception. The laws are adequate. Compliance
therewith is not difficult, much less impossible. The avowed emergency, if at all, is not urgently immediate.
In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform under the
Constitution. It has to decide, when called upon to do so in an appropriate proceeding, all cases in which the
constitutionality or validity of any treaty, law, ordinance, executive order or regulation is in question. We can not
elude this duty. To do so would be culpable dereliction on our part. While we sympathize with the public that might
be adversely affected as a result of this decision yet our sympathy does not authorize us to sanction an act contrary
to applicable laws. The fault lies with those who stubbornly contended and represented before this Court that there
is no rice shortage, that the imported rice is not intended for the consuming public, but for stockpiling of the army.
And, if as now claimed before the public, contrary to the Government's stand in this case, that there is need for
imported rice to stave off hunger, our legislature has provided for such a situation. As already stated, the laws are
adequate. The importation of rice under the conditions set forth in the laws may be authorized not only where there
is an existing shortage, but also when the shortage is imminent. In other words, lawful remedy to solve the situation
is available, if only those who have the duty to execute the laws perform their duty. If there is really need for the
importation of rice, who adopt some dubious means which necessitates resort to doubtful exercise of the power of
the President as Commander-in-Chief of the Army? Why not comply with the mandate of the law? Ours is supposed
to be a regime under the rule of law. Adoption as a government policy of the theory of the end justifies the means
brushing aside constitutional and legal restraints, must be rejected, lest we end up with the end of freedom.
For these reasons, I concur in the decision of the Court.

Separate Opinions
Footnotes
1

The Secretary of National Defense, the Auditor General, the Secretary of Commerce and Industry, and the
Secretary Justice.
2

275 hectares.

Tapales vs. The President and the Board of Regents of the U.P., L-17523, March 30, 1963.

Mangubat vs. Osmea, L-12837, April 30, 1959; Baguio vs. Hon. Jose Rodriguez, L-11078, May 27, 1959;
Pascual Provincial Board, L-11959, October 31, 1959.
5

Marinduque Iron Mines Agents, Inc. vs. Secretary of Public Works, L-15982, May 31, 1963.

In the present case, respondents allege in their answer that "the importation ... in question ... is authorized
by the President.
7

Alzate vs. Aldaba, L-14407, February 29, 1960; Demaisip vs. Court of Appeals, L-13000, September 25,
1959.
8

Which provides that the national defense policy of the Philippines shall be follows:
(a) The preservation of the state is the obligation of every citizen. The security of the Philippines and
the freedom, independence and perpetual neutrality of the Philippine Republic shall be guaranteed
by the employment of all citizens, without distinction of sex or age, and all resources.
(b) The employment of the nation's citizens and resources for national defense shall be effected by a
national mobilization.
(c) The national mobilization shall include the execution of all measures necessary to pass from a
peace to a war footing.
(d) The civil authority shall always be supreme. The President of the Philippines as the Commanderin-Chief of all military forces, shall be responsible that mobilization measures are prepared at all
times.
xxx

xxx

xxx

In line with the provisions of paragraphs b), c), e), and f) of section 2 of said Act.

10

The Constitution and What It Means Today, pp. 95-96.

11

The Power of the President as Commander-in-Chief is primarily that of military command in wartime, and
as such includes, as against the persons and property of enemies of the United States encountered within
the theater of military operations, all the powers allowed a military commander in such cases by the Law of
Nations. President Lincoln's famous Proclamation of Emancipation rested upon this ground. It was effective
within the theater of military operations while the war lasted, but no longer. (p. 93, Emphasis supplied.)
12

From an early date the Commander-in-Chief power came to be merged with the President's duty to take
care that the laws be faithfully executed. So, while in using military force against unlawful combinations too
strong to be dealt with through the ordinary processes of law the President acts by authorization of statute,
his powers are still those of Commander-in-Chief. ...
Under "preventive martial law", so-called because it authorizes "preventive" arrests and detentions, the
military acts as an adjunct of the civil authorities but not necessarily subject to their orders. It may be
established whenever the executive organ, State or national, deems it to be necessary for the restoration of
good order. The concept, being of judicial origin, is of course for judicial application, and ultimately for
application by the Supreme Court, in enforcement of the due process clauses. (See, also, Section III of this
Article, and Article IV, Section IV.) (Pp. 95-96, Emphasis supplied.)

August 15, 1961

IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar without taking the
examination. ARTURO EFREN GARCIA, petitioner.
RESOLUTION
BARRERA, J.:
Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to the required
bar examinations. In his verified petition, he avers, among others, that he is a Filipino citizen born in Bacolor City,
Province of Negros Occidental, of Filipino parentage; that he had taken and finished in Spain, the course of
"Bachillerato Superior"; that he was approved, selected and qualified by the "Instituto de Cervantes" for admission to
the Central University of Madrid where he studied and finished the law course graduating there as "Licenciado En
Derecho"; that thereafter he was allowed to practice the law profession in Spain; and that under the provision of the
Treaty of Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the
Spanish state, he is entitled to practice the law profession in the Philippines without submitting to the required bar
examinations.
After due consideration, the Court resolved to deny the petition on the following grounds:
(1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between the Republic of the
Philippines and the Spanish State can not be invoked by applicant. Under Article 11 thereof;
The Nationals of each of the two countries who shall have obtained recognition of the validity of their
academic degrees by virtue of the stipulations of this Treaty, can practice their professions within the
territory of the Other, . . .. (Emphasis supplied).
from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens desiring to practice
their profession in Spain, and the citizens of Spain desiring to practice their professions in the Philippines. Applicant
is a Filipino citizen desiring to practice the legal profession in the Philippines. He is therefore subject to the laws of
his own country and is not entitled to the privileges extended to Spanish nationals desiring to practice in the
Philippines.
(2) Article I of the Treaty, in its pertinent part, provides .
The nationals of both countries who shall have obtained degree or diplomas to practice the liberal
professions in either of the Contracting States, issued by competent national authorities, shall be deemed
competent to exercise said professions in the territory of the Other, subject to the laws and regulations of the
latter. . . ..
It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made expressly subject
to the laws and regulations of the contracting State in whose territory it is desired to exercise the legal profession;
and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof, which have the force of law, require that
before anyone can practice the legal profession in the Philippine he must first successfully pass the required bar
examinations; and
(3) The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish State could not
have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines,
for the reason that the Executive Department may not encroach upon the constitutional prerogative of the Supreme
Court to promulgate rules for admission to the practice of law in the Philippines, the lower to repeal, alter or
supplement such rules being reserved only to the Congress of the Philippines. (See Sec. 13, Art VIII, Phil.
Constitution).
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad, JJ., concur.
Bautista Angelo, J., on leave, took no part.
Concepcion, J., took no part.

G.R. No. L-7995

May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships
adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
Manila,respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of
Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment,
fundamental and far-reaching in significance. The enactment poses questions of due process, police power and
equal protection of the laws. It also poses an important issue of fact, that is whether the conditions which the
disputed law purports to remedy really or actually exist. Admittedly springing from a deep, militant, and positive
nationalistic impulse, the law purports to protect citizen and country from the alien retailer. Through it, and within the
field of economy it regulates, Congress attempts to translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival and welfare, into a concrete and tangible
measures designed to free the national retailer from the competing dominance of the alien, so that the country and
the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances
justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade
business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and
against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the
Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in
favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engaged therein,
unless their licenses are forfeited in accordance with the law, until their death or voluntary retirement in case of
natural persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical
persons; (3) an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for
the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization, control weights
and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the
establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail
business, (6) a provision requiring aliens actually engaged in the retail business to present for registration with the
proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the
business, their assets and liabilities and their offices and principal offices of judicial entities; and (7) a provision
allowing the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six
months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships adversely
affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial declaration that said Act
is unconstitutional, and to enjoin the Secretary of Finance and all other persons acting under him, particularly city
and municipal treasurers, from enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending
that: (1) it denies to alien residents the equal protection of the laws and deprives of their liberty and property without
due process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3) the Act
violates international and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against
the transmission by aliens of their retail business thru hereditary succession, and those requiring 100% Filipino
capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1
and 5, Article XIII and Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in the valid
exercise of the police power of the State, which exercise is authorized in the Constitution in the interest of national
economic survival; (2) the Act has only one subject embraced in the title; (3) no treaty or international obligations are
infringed; (4) as regards hereditary succession, only the form is affected but the value of the property is not
impaired, and the institution of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power.
There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its
exercise in this instance is attended by a violation of the constitutional requirements of due process and equal

protection of the laws. But before proceeding to the consideration and resolution of the ultimate issue involved, it
would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations in the determination
of the ever recurrent conflict between police power and the guarantees of due process and equal protection of the
laws. What is the scope of police power, and how are the due process and equal protection clauses related to it?
What is the province and power of the legislature, and what is the function and duty of the courts? These
consideration must be clearly and correctly understood that their application to the facts of the case may be brought
forth with clarity and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its
sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or
defined in its scope; it is said to be co-extensive with self-protection and survival, and as such it is the most positive
and active of all governmental processes, the most essential, insistent and illimitable. Especially is it so under a
modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable
proportions; the field and scope of police power has become almost boundless, just as the fields of public interest
and public welfare have become almost all-embracing and have transcended human foresight. Otherwise stated, as
we cannot foresee the needs and demands of public interest and welfare in this constantly changing and
progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which
the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent of
the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the
due process clause and the equal protection clause.
b. Limitations on police power.
The basic limitations of due process and equal protection are found in the following provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any
person be denied the equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are
not limited to citizens alone but are admittedly universal in their application, without regard to any differences of
race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause.
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the
object to which it is directed or by territory within which is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as
to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exists for making a distinction between those who fall within such class and those who do not.
(2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause.
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power.
Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the
accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient
foundation or reason in connection with the matter involved; or has there not been a capricious use of the legislative
power? Can the aims conceived be achieved by the means used, or is it not merely an unjustified interference with
private interest? These are the questions that we ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is
more apparent than real. Properly related, the power and the guarantees are supposed to coexist. The balancing is
the essence or, shall it be said, the indispensable means for the attainment of legitimate aspirations of any
democratic society. There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can
neither be absolute liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty
and property, provided there is due process of law; and persons may be classified into classes and groups, provided
everyone is given the equal protection of the law. The test or standard, as always, is reason. The police power
legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between
purposes and means. And if distinction and classification has been made, there must be a reasonable basis for said
distinction.
e. Legislative discretion not subject to judicial review.
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be
overlooked, in the first place, that the legislature, which is the constitutional repository of police power and exercises
the prerogative of determining the policy of the State, is by force of circumstances primarily the judge of necessity,
adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the police power, or of the
measures adopted to implement the public policy or to achieve public interest. On the other hand, courts, although
zealous guardians of individual liberty and right, have nevertheless evinced a reluctance to interfere with the
exercise of the legislative prerogative. They have done so early where there has been a clear, patent or palpable
arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not supposed to override
legitimate policy, and courts never inquire into the wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the disputed
legislation were merely a regulation, as its title indicates, there would be no question that it falls within the legitimate
scope of legislative power. But it goes further and prohibits a group of residents, the aliens, from engaging therein.
The problem becomes more complex because its subject is a common, trade or occupation, as old as society itself,
which from the immemorial has always been open to residents, irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation.
In a primitive economy where families produce all that they consume and consume all that they produce, the dealer,
of course, is unknown. But as group life develops and families begin to live in communities producing more than
what they consume and needing an infinite number of things they do not produce, the dealer comes into existence.
As villages develop into big communities and specialization in production begins, the dealer's importance is
enhanced. Under modern conditions and standards of living, in which man's needs have multiplied and diversified to
unlimited extents and proportions, the retailer comes as essential as the producer, because thru him the infinite
variety of articles, goods and needed for daily life are placed within the easy reach of consumers. Retail dealers
perform the functions of capillaries in the human body, thru which all the needed food and supplies are ministered to
members of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the community. He ministers to the
resident's daily needs, food in all its increasing forms, and the various little gadgets and things needed for home and
daily life. He provides his customers around his store with the rice or corn, the fish, the salt, the vinegar, the spices
needed for the daily cooking. He has cloths to sell, even the needle and the thread to sew them or darn the clothes
that wear out. The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a
department store or, a supermarket is so much a part of day-to-day existence.
b. The alien retailer's trait.
The alien retailer must have started plying his trades in this country in the bigger centers of population (Time there
was when he was unknown in provincial towns and villages). Slowly but gradually be invaded towns and villages;
now he predominates in the cities and big centers of population. He even pioneers, in far away nooks where the
beginnings of community life appear, ministering to the daily needs of the residents and purchasing their agricultural
produce for sale in the towns. It is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and insolent
neighbors and customers are made in his face, but he heeds them not, and he forgets and forgives. The community
takes note of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance.
There is a general feeling on the part of the public, which appears to be true to fact, about the controlling and
dominant position that the alien retailer holds in the nation's economy. Food and other essentials, clothing, almost
all articles of daily life reach the residents mostly through him. In big cities and centers of population he has acquired
not only predominance, but apparent control over distribution of almost all kinds of goods, such as lumber,
hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for
some national corporations like the Naric, the Namarco, the Facomas and the Acefa, his control over principal foods
and products would easily become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that the fear
is unfounded and the threat is imagined; in another, it is charged that the law is merely the result of radicalism and
pure and unabashed nationalism. Alienage, it is said, is not an element of control; also so many unmanageable
factors in the retail business make control virtually impossible. The first argument which brings up an issue of fact
merits serious consideration. The others are matters of opinion within the exclusive competence of the legislature
and beyond our prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and white. Between the
constitutional convention year (1935), when the fear of alien domination and control of the retail trade already filled
the minds of our leaders with fears and misgivings, and the year of the enactment of the nationalization of the retail
trade act (1954), official statistics unmistakably point out to the ever-increasing dominance and control by the alien
of the retail trade, as witness the following tables:
Assets
Year and
Retailers
Nationality

No.Establishments

Pesos

Gross Sales

Per cent
Distribution

Pesos

Per cent
Distribution

1941:
Filipino
..........

106,671 200,323,138

55.82 174,181,924

51.74

Chinese
...........

15,356 118,348,692

32.98 148,813,239

44.21

1,646 40,187,090

11.20 13,630,239

4.05

Others

............
1947:
Filipino
..........

111,107 208,658,946

65.05 279,583,333

57.03

Chinese
...........

13,774 106,156,218

33.56 205,701,134

41.96

Others
...........

354

8,761,260

.49

4,927,168

1.01

1948: (Census)
Filipino
..........

113,631 213,342,264

67.30 467,161,667

60.51

Chinese
..........

12,087 93,155,459

29.38 294,894,227

38.20

Others
..........

422 10,514,675

Filipino
..........
Chinese
..........

3.32

9,995,402

1.29

113,659 213,451,602

60.89 462,532,901

53.47

16,248 125,223,336

35.72 392,414,875

45.36

Others
..........

486 12,056,365

3.39 10,078,364

1.17

Filipino
.........

119,352 224,053,620

61.09 466,058,052

53.07

Chinese
..........

17,429 134,325,303

36.60 404,481,384

46.06

1949:

1951:

Others
..........

347

8,614,025

2.31

7,645,327

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Year and Retailer's
Nationality

Item
Assets
(Pesos)

Gross
Sales
(Pesos)

1941:
Filipino .............................................

1,878

1,633

Chinese
..............................................

7,707

9,691

Others
...............................................

24,415

8,281

Filipino .............................................

1,878

2,516

Chinese ...........................................

7,707

14,934

Others ..............................................

24,749

13,919

Filipino .............................................

1,878

4,111

Chinese
.............................................

7,707

24,398

Others ..............................................

24,916

23,686

Filipino .............................................

1,878

4,069

Chinese
..............................................

7,707

24,152

1947:

1948:

(Census)

1949:

87

Others ..............................................

24,807

20,737

Filipino .............................................

1,877

3,905

Chinese
.............................................

7,707

33,207

Others
...............................................

24,824

22,033

1951:

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners,
Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and
Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino establishments
already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation has steadily
increased during the years. It is true, of course, that Filipinos have the edge in the number of retailers, but aliens
more than make up for the numerical gap through their assests and gross sales which average between six and
seven times those of the very many Filipino retailers. Numbers in retailers, here, do not imply superiority; the alien
invests more capital, buys and sells six to seven times more, and gains much more. The same official report,
pointing out to the known predominance of foreign elements in the retail trade, remarks that the Filipino retailers
were largely engaged in minor retailer enterprises. As observed by respondents, the native investment is thinly
spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in Constitutional convention.
It is this domination and control, which we believe has been sufficiently shown to exist, that is the legislature's target
in the enactment of the disputed nationalization would never have been adopted. The framers of our Constitution
also believed in the existence of this alien dominance and control when they approved a resolution categorically
declaring among other things, that "it is the sense of the Convention that the public interest requires the
nationalization of the retail trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on
page 67 of Petitioner.) That was twenty-two years ago; and the events since then have not been either pleasant or
comforting. Dean Sinco of the University of the Philippines College of Law, commenting on the patrimony clause of
the Preamble opines that the fathers of our Constitution were merely translating the general preoccupation of
Filipinos "of the dangers from alien interests that had already brought under their control the commercial and other
economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the
members of the constitutional convention for the economic life of the citizens, in connection with the nationalistic
provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the country is not
desirable and that if such a situation should remain, political independence alone is no guarantee to national
stability and strength. Filipino private capital is not big enough to wrest from alien hands the control of the
national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and
hesitant. Under such conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of the nation in
somewhat the same way that it did in the crusade for political freedom. Thus . . . it (the Constitution)
envisages an organized movement for the protection of the nation not only against the possibilities of armed
invasion but also against its economic subjugation by alien interests in the economic field. (Phil. Political
Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they express
sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July 18, 1953, of the Fifth
National convention of Filipino Businessmen, and a similar resolution, approved on March 20, 1954, of the Second
National Convention of Manufacturers and Producers. The man in the street also believes, and fears, alien
predominance and control; so our newspapers, which have editorially pointed out not only to control but to alien
stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved by official statistics, and
felt by all the sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone;
there is a prevailing feeling that such predominance may truly endanger the national interest. With ample capital,
unity of purpose and action and thorough organization, alien retailers and merchants can act in such complete
unison and concert on such vital matters as the fixing of prices, the determination of the amount of goods or articles
to be made available in the market, and even the choice of the goods or articles they would or would not patronize
or distribute, that fears of dislocation of the national economy and of the complete subservience of national economy
and of the consuming public are not entirely unfounded. Nationals, producers and consumers alike can be placed
completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be prescribed by the
aliens, because the producer or importer does not offer them sufficient profits, or because a new competing article
offers bigger profits for its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating

it from their stocks, offering the new one as a substitute. Hence, the producers or importers of the prescribed article,
or its consumers, find the article suddenly out of the prescribed article, or its consumers, find the article suddenly out
of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien domination. Grave
abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of
justice may not properly overlook or ignore in the interests of truth and justice, that there exists a general feeling on
the part of the public that alien participation in the retail trade has been attended by a pernicious and intolerable
practices, the mention of a few of which would suffice for our purposes; that at some time or other they have
cornered the market of essential commodities, like corn and rice, creating artificial scarcities to justify and enhance
profits to unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of
the consuming public, so much so that the Government has had to establish the National Rice and Corn Corporation
to save the public from their continuous hoarding practices and tendencies; that they have violated price control
laws, especially on foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic
Act No. 1168), authorizing their immediate and automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the operation of the law of supply and demand;
that they have connived to boycott honest merchants and traders who would not cater or yield to their demands, in
unlawful restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax laws,
smuggled goods and money into and out of the land, violated import and export prohibitions, control laws and the
like, in derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public
officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the Government. As a
matter of fact appeals to unscrupulous aliens have been made both by the Government and by their own lawful
diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of many of the
above practices.
The circumstances above set forth create well founded fears that worse things may come in the future. The present
dominance of the alien retailer, especially in the big centers of population, therefore, becomes a potential source of
danger on occasions of war or other calamity. We do not have here in this country isolated groups of harmless
aliens retailing goods among nationals; what we have are well organized and powerful groups that dominate the
distribution of goods and commodities in the communities and big centers of population. They owe no allegiance or
loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While the national holds his
life, his person and his property subject to the needs of his country, the alien may even become the potential enemy
of the State.
f. Law enacted in interest of national economic survival and security.
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the product
of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and determination of the
people, thru their authorized representatives, to free the nation from the economic situation that has unfortunately
been saddled upon it rightly or wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the
national security itself, and indisputably falls within the scope of police power, thru which and by which the State
insures its existence and security and the supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. The next question that now poses solution is, Does the law deny
the equal protection of the laws? As pointed out above, the mere fact of alienage is the root and cause of the
distinction between the alien and the national as a trader. The alien resident owes allegiance to the country of his
birth or his adopted country; his stay here is for personal convenience; he is attracted by the lure of gain and profit.
His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of
loyalty and enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of regard,
sympathy and consideration for his Filipino customers as would prevent him from taking advantage of their
weakness and exploiting them. The faster he makes his pile, the earlier can the alien go back to his beloved country
and his beloved kin and countrymen. The experience of the country is that the alien retailer has shown such utter
disregard for his customers and the people on whom he makes his profit, that it has been found necessary to adopt
the legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine contribution to national
income and wealth. He undoubtedly contributes to general distribution, but the gains and profits he makes are not
invested in industries that would help the country's economy and increase national wealth. The alien's interest in this
country being merely transient and temporary, it would indeed be ill-advised to continue entrusting the very
important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret
manipulations of stocks of commodities and prices, their utter disregard of the welfare of their customers and of the
ultimate happiness of the people of the nation of which they are mere guests, which practices, manipulations and
disregard do not attend the exercise of the trade by the nationals, show the existence of real and actual, positive
and fundamental differences between an alien and a national which fully justify the legislative classification adopted
in the retail trade measure. These differences are certainly a valid reason for the State to prefer the national over the
alien in the retail trade. We would be doing violence to fact and reality were we to hold that no reason or ground for
a legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and real,
furnish sufficient grounds for legislative classification of retail traders into nationals and aliens. Some may disagree
with the wisdom of the legislature's classification. To this we answer, that this is the prerogative of the law-making
power. Since the Court finds that the classification is actual, real and reasonable, and all persons of one class are
treated alike, and as it cannot be said that the classification is patently unreasonable and unfounded, it is in duty
bound to declare that the legislature acted within its legitimate prerogative and it can not declare that the act
transcends the limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not
curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope of
discretion, and a law can be violative of the constitutional limitation only when the classification is without
reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case of Linsey vs.
Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal
protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to
classify in the adoption of police laws, but admits of the exercise of the wide scope of discretion in that
regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely
arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely
because it is not made with mathematical nicety, or because in practice it results in some inequality. 3.
When the classification in such a law is called in question, if any state of facts reasonably can be conceived
that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.
4. One who assails the classification in such a law must carry the burden of showing that it does not rest
upon any reasonable basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification.
The question as to whether or not citizenship is a legal and valid ground for classification has already been
affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case of Smith Bell &
Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine Legislature was in issue,
because of a condition therein limiting the ownership of vessels engaged in coastwise trade to corporations formed
by citizens of the Philippine Islands or the United States, thus denying the right to aliens, it was held that the
Philippine Legislature did not violate the equal protection clause of the Philippine Bill of Rights. The legislature in
enacting the law had as ultimate purpose the encouragement of Philippine shipbuilding and the safety for these
Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all presumptions are
in favor of its constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in
coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due process or law
clauses of the Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of
Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming
houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms
part of an extensive system, the object of which is to encourage American shipping, and place them on an
equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects
a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is
contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to the act of her
enrollment. But it is to confer on her American privileges, as contra distinguished from foreign; and to
preserve the Government from fraud by foreigners; in surreptitiously intruding themselves into the American
commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is
projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise justified simply
because the limitation of the class falls along the lines of nationality. That would be requiring a higher degree
of protection for aliens as a class than for similar classes than for similar classes of American citizens.
Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and
peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to become a
citizen of the United States, was held valid, for the following reason: It may seem wise to the legislature to limit the
business of those who are supposed to have regard for the welfare, good order and happiness of the community,
and the court cannot question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a
statute which prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not to
be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but was based on the belief that
an alien cannot be sufficiently acquainted with "our institutions and our life as to enable him to appreciate the
relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke
vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance
of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly
irrational discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may not bear
in some instances such a relation to a legitimate object of legislation as to be made the basis of permitted
classification, and that it could not state that the legislation is clearly wrong; and that latitude must be allowed for the
legislative appraisement of local conditions and for the legislative choice of methods for controlling an apprehended
evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City

of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking was considered as having tendencies
injuring public interest, and limiting it to citizens is within the scope of police power. A similar statute denying aliens
the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914).
So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to have
different interests, knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to
them for the business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional
rights. In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the
licensing of aliens as barbers was held void, but the reason for the decision was the court's findings that the
exercise of the business by the aliens does not in any way affect the morals, the health, or even the convenience of
the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute banning
the issuance of commercial fishing licenses to person ineligible to citizenship was held void, because the law
conflicts with Federal power over immigration, and because there is no public interest in the mere claim of
ownership of the waters and the fish in them, so there was no adequate justification for the discrimination. It further
added that the law was the outgrowth of antagonism toward the persons of Japanese ancestry. However, two
Justices dissented on the theory that fishing rights have been treated traditionally as natural resources. In Fraser vs.
McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of
foreign-born unnaturalized male persons over 21 years of age, was declared void because the court found that there
was no reason for the classification and the tax was an arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained.
It is true that some decisions of the Federal court and of the State courts in the United States hold that the
distinction between aliens and citizens is not a valid ground for classification. But in this decision the laws declared
invalid were found to be either arbitrary, unreasonable or capricious, or were the result or product of racial
antagonism and hostility, and there was no question of public interest involved or pursued. In Yu Cong Eng vs.
Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a Philippine law making unlawful
the keeping of books of account in any language other than English, Spanish or any other local dialect, but the main
reasons for the decisions are: (1) that if Chinese were driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be deprived of their
right to be advised of their business and to direct its conduct. The real reason for the decision, therefore, is the
court's belief that no public benefit would be derived from the operations of the law and on the other hand it would
deprive Chinese of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220
(1885) an ordinance conferring powers on officials to withhold consent in the operation of laundries both as to
persons and place, was declared invalid, but the court said that the power granted was arbitrary, that there was no
reason for the discrimination which attended the administration and implementation of the law, and that the motive
thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to
engage as hawkers and peddlers was declared void, because the discrimination bore no reasonable and just
relation to the act in respect to which the classification was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do not naturally
possess the sympathetic consideration and regard for the customers with whom they come in daily contact, nor the
patriotic desire to help bolster the nation's economy, except in so far as it enhances their profit, nor the loyalty and
allegiance which the national owes to the land. These limitations on the qualifications of the aliens have been shown
on many occasions and instances, especially in times of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction
between the alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without the intimate
knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain
classes of aliens are of different psychology from our fellow countrymen. Furthermore, it is natural and
reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose ideals
of governmental environment and control have been engendered and formed under entirely different
regimes and political systems, have not the same inspiration for the public weal, nor are they as well
disposed toward the United States, as those who by citizenship, are a part of the government itself. Further
enlargement, is unnecessary. I have said enough so that obviously it cannot be affirmed with absolute
confidence that the Legislature was without plausible reason for making the classification, and therefore
appropriate discriminations against aliens as it relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
We now come to due process as a limitation on the exercise of the police power. It has been stated by the highest
authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law shall not be
unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation
to the subject sought to be attained. . . . .
xxx

xxx

xxx

So far as the requirement of due process is concerned and in the absence of other constitutional restriction
a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and
to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare
such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a

reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police
power in a constitutional sense, for the test used to determine the constitutionality of the means employed
by the legislature is to inquire whether the restriction it imposes on rights secured to individuals by the Bill of
Rights are unreasonable, and not whether it imposes any restrictions on such rights. . . .
xxx

xxx

xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it
affects, must not be for the annoyance of a particular class, and must not be unduly oppressive. (11 Am. Jur.
Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the
interests of the public generally, as distinguished from those of a particular class, require such interference;
and second, that the means are reasonably necessary for the accomplishment of the purpose, and not
unduly oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate
the operation of a business, is or is not constitutional, one of the first questions to be considered by the court
is whether the power as exercised has a sufficient foundation in reason in connection with the matter
involved, or is an arbitrary, oppressive, and capricious use of that power, without substantial relation to the
health, safety, morals, comfort, and general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago
recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and honest occupation
and therefore beyond the power of the legislature to prohibit and penalized. This arguments overlooks fact and
reality and rests on an incorrect assumption and premise, i.e., that in this country where the occupation is engaged
in by petitioner, it has been so engaged by him, by the alien in an honest creditable and unimpeachable manner,
without harm or injury to the citizens and without ultimate danger to their economic peace, tranquility and welfare.
But the Legislature has found, as we have also found and indicated, that the privilege has been so grossly abused
by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control
of the occupation and threatens a deadly stranglehold on the nation's economy endangering the national security in
times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts and
circumstances, but this, Is the exclusion in the future of aliens from the retail trade unreasonable. Arbitrary
capricious, taking into account the illegitimate and pernicious form and manner in which the aliens have heretofore
engaged therein? As thus correctly stated the answer is clear. The law in question is deemed absolutely necessary
to bring about the desired legislative objective, i.e., to free national economy from alien control and dominance. It is
not necessarily unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test
of reasonableness of a law is the appropriateness or adequacy under all circumstances of the means adopted to
carry out its purpose into effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but
actually necessary, must be considered not to have infringed the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill, which later was
enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of
the Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery
of our economic life are the ones who owe no allegiance to this Republic, who have no profound devotion to
our free institutions, and who have no permanent stake in our people's welfare, we are not really the masters
of our destiny. All aspects of our life, even our national security, will be at the mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens
of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons
who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life
and endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none the less
legitimate. Freedom and liberty are not real and positive if the people are subject to the economic control and
domination of others, especially if not of their own race or country. The removal and eradication of the shackles of

foreign economic control and domination, is one of the noblest motives that a national legislature may pursue. It is
impossible to conceive that legislation that seeks to bring it about can infringe the constitutional limitation of due
process. The attainment of a legitimate aspiration of a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.
The framers of the Constitution could not have intended to impose the constitutional restrictions of due process on
the attainment of such a noble motive as freedom from economic control and domination, thru the exercise of the
police power. The fathers of the Constitution must have given to the legislature full authority and power to enact
legislation that would promote the supreme happiness of the people, their freedom and liberty. On the precise issue
now before us, they expressly made their voice clear; they adopted a resolution expressing their belief that the
legislation in question is within the scope of the legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it
abstain from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others on
this matter because it is convinced that the National Assembly is authorized to promulgate a law which limits
to Filipino and American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of the
Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution. Thus in the
preamble, a principle objective is the conservation of the patrimony of the nation and as corollary the provision
limiting to citizens of the Philippines the exploitation, development and utilization of its natural resources. And in
Section 8 of Article XIV, it is provided that "no franchise, certificate, or any other form of authorization for the
operation of the public utility shall be granted except to citizens of the Philippines." The nationalization of the retail
trade is only a continuance of the nationalistic protective policy laid down as a primary objective of the Constitution.
Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions of the
Constitution is unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of the
radical measures is, therefore, fully justified. It would have been recreant to its duties towards the country and its
people would it view the sorry plight of the nationals with the complacency and refuse or neglect to adopt a remedy
commensurate with the demands of public interest and national survival. As the repository of the sovereign power of
legislation, the Legislature was in duty bound to face the problem and meet, through adequate measures, the
danger and threat that alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable.
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the Legislature has
been. The law is made prospective and recognizes the right and privilege of those already engaged in the
occupation to continue therein during the rest of their lives; and similar recognition of the right to continue is
accorded associations of aliens. The right or privilege is denied to those only upon conviction of certain offenses. In
the deliberations of the Court on this case, attention was called to the fact that the privilege should not have been
denied to children and heirs of aliens now engaged in the retail trade. Such provision would defeat the law itself, its
aims and purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It is well settled that
the Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment.
The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and every
presumption is in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it
may not annul the legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of
a law attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and we find the
provisions are not unreasonable. These principles also answer various other arguments raised against the law,
some of which are: that the law does not promote general welfare; that thousands of aliens would be thrown out of
employment; that prices will increase because of the elimination of competition; that there is no need for the
legislation; that adequate replacement is problematical; that there may be general breakdown; that there would be
repercussions from foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law
which lies solely within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is misleading or
deceptive, as it conceals the real purpose of the bill which is to nationalize the retail business and prohibit aliens
from engaging therein. The constitutional provision which is claimed to be violated in Section 21 (1) of Article VI,
which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in
the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators or the
public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory Construction, Sec.
1707, p. 297.) A cursory consideration of the title and the provisions of the bill fails to show the presence of duplicity.
It is true that the term "regulate" does not and may not readily and at first glance convey the idea of "nationalization"
and "prohibition", which terms express the two main purposes and objectives of the law. But "regulate" is a broader
term than either prohibition or nationalization. Both of these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale of
intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)

Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be
stated in the tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject
of an act prohibiting the sale of such liquors to minors and to persons in the habit of getting intoxicated; such
matters being properly included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306,
308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of
acts usually done in connection with the thing to be regulated. While word regulate does not ordinarily
convey meaning of prohibit, there is no absolute reason why it should not have such meaning when used in
delegating police power in connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title need not be an
index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.) The above rule was
followed the title of the Act in question adopted the more general term "regulate" instead of "nationalize" or
"prohibit". Furthermore, the law also contains other rules for the regulation of the retail trade which may not be
included in the terms "nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or
"prohibit", there would have been many provisions not falling within the scope of the title which would have made the
Act invalid. The use of the term "regulate", therefore, is in accord with the principle governing the drafting of statutes,
under which a simple or general term should be adopted in the title, which would include all other provisions found in
the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the
legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters
which have received the notice, action and study of the legislators or of the public. In the case at bar it cannot be
claimed that the legislators have been appraised of the nature of the law, especially the nationalization and the
prohibition provisions. The legislators took active interest in the discussion of the law, and a great many of the
persons affected by the prohibitions in the law conducted a campaign against its approval. It cannot be claimed,
therefore, that the reasons for declaring the law invalid ever existed. The objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the
United Nations and of the Declaration of the Human Rights adopted by the United Nations General Assembly. We
find no merit in the Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their
subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights
contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all
nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights can
be inferred the fact that members of the United Nations Organizations, such as Norway and Denmark, prohibit
foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in
domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also
claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese
nationals "upon the same terms as the nationals of any other country." But the nationals of China are not
discriminating against because nationals of all other countries, except those of the United States, who are granted
special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the
law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law
(U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police power
of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat
and danger to national economy posed by alien dominance and control of the retail business and free citizens and
country from dominance and control; that the enactment clearly falls within the scope of the police power of the
State, thru which and by which it protects its own personality and insures its security and future; that the law does
not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction
between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because
the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and
reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to
be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that in any case
such matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department
of the Government may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers
from no duplicity and has not misled the legislators or the segment of the population affected; and that it cannot be
said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on the
subject and the police power may not be curtailed or surrendered by any treaty or any other conventional
agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh
in its impact on the aliens. Thus it is stated that the more time should have been given in the law for the liquidation
of existing businesses when the time comes for them to close. Our legal duty, however, is merely to determine if the
law falls within the scope of legislative authority and does not transcend the limitations of due process and equal
protection guaranteed in the Constitution. Remedies against the harshness of the law should be addressed to the
Legislature; they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Separate Opinions
PADILLA, J., concurring and dissenting:
I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act passed by the
Congress and duly approved by the President of the Republic. But the rule does not preclude courts from inquiring
and determining whether the Act offends against a provision or provisions of the Constitution. I am satisfied that the
Act assailed as violative of the due process of law and the equal protection of the laws clauses of the Constitution
does not infringe upon them, insofar as it affects associations, partnership or corporations, the capital of which is not
wholly owned by the citizens of the Philippines, and aliens, who are not and have not been engaged in the retail
business. I am, however, unable to persuade myself that it does not violate said clauses insofar as the Act applies to
associations and partnerships referred to in the Act and to aliens, who are and have heretofore been engaged in
said business. When they did engage in the retail business there was no prohibition on or against them to engage in
it. They assumed and believed in good faith they were entitled to engaged in the business. The Act allows aliens to
continue in business until their death or voluntary retirement from the business or forfeiture of their license; and
corporations, associations or partnership, the capital of which is not wholly owned by the citizens of the Philippines
to continue in the business for a period of ten years from the date of the approval of the Act (19 June 1954) or until
the expiry of term of the existence of the association or partnership or corporation, whichever event comes first. The
prohibition on corporations, the capital of which is not wholly owned by citizens of the Philippines, to engage in the
retail business for a period of more than ten years from the date of the approval of the Act or beyond the term of
their corporate existence, whichever event comes first, is valid and lawful, because the continuance of the existence
of such corporations is subject to whatever the Congress may impose reasonably upon them by subsequent
legislation.1 But the prohibition to engage in the retail business by associations and partnerships, the capital of which
is not wholly owned by citizen of the Philippines, after ten years from the date of the approval of the Act, even before
the end of the term of their existence as agreed upon by the associates and partners, and by alien heirs to whom
the retail business is transmitted by the death of an alien engaged in the business, or by his executor or
administrator, amounts to a deprivation of their property without due process of law. To my mind, the ten-year period
from the date of the approval of the Act or until the expiration of the term of the existence of the association and
partnership, whichever event comes first, and the six-month period granted to alien heirs of a deceased alien, his
executor or administrator, to liquidate the business, do not cure the defect of the law, because the effect of the
prohibition is to compel them to sell or dispose of their business. The price obtainable at such forced sale of the
business would be inadequate to reimburse and compensate the associates or partners of the associations or
partnership, and the alien heirs of a deceased alien, engaged in the retail business for the capital invested in it. The
stock of merchandise bought and sold at retail does not alone constitute the business. The goodwill that the
association, partnership and the alien had built up during a long period of effort, patience and perseverance forms
part of such business. The constitutional provisions that no person shall be deprived of his property without due
process of law2 and that no person shall be denied the equal protection of the laws3 would have no meaning as
applied to associations or partnership and alien heirs of an alien engaged in the retail business if they were to be
compelled to sell or dispose of their business within ten years from the date of the approval of the Act and before the
end of the term of the existence of the associations and partnership as agreed upon by the associations and
partners and within six months after the death of their predecessor-in-interest.
The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of private
agricultural lands which together with the lands of the public domain constitute the priceless patrimony and mainstay
of the nation; yet, they did not deem it wise and prudent to deprive aliens and their heirs of such lands.4
For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and partnership
referred to therein to wind up their retail business within ten years from the date of the approval of the Act even
before the expiry of the term of their existence as agreed upon by the associates and partners and section 3 of the
Act, insofar as it compels the aliens engaged in the retail business in his lifetime his executor or administrator, to
liquidate the business, are invalid, for they violate the due process of law and the equal protection of the laws
clauses of the Constitution.

Footnotes
1

Section 76, Act No. 1459..

Section 1 (1), Article III, of the Constitution..

Ibid.

Section 5, Article XIII, of the Constitution.

B/GEN. (RET.) FRANCISCO V. G.R. No. 170165

GUDANI AND LT. COL.
ALEXANDER F. BALUTAN
Petitioners, Present:
PANGANIBAN, C.J.,
PUNO,
- versus - QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
LT./GEN. GENEROSO S. SENGA CORONA,
AS CHIEF OF STAFF OF THE CARPIO-MORALES,
ARMED FORCES OF THE CALLEJO, SR.,
PHILIPPINES, COL. GILBERTO AZCUNA,
JOSE C. ROA AS THE PRE-TRIAL TINGA,
INVESTIGATING OFFICER, THE CHICO-NAZARIO,
PROVOST MARSHALL GENERAL GARCIA, and
OF THE ARMED FORCES OF THE VELASCO, JR., JJ.
PHILIPPINES AND THE GENERAL
COURT-MARTIAL,
Respondents.
Promulgated:
August 15, 2006
x--------------------------------------------------------------------------- x

DECISION
TINGA, J.:
A
most
dangerous
general
proposition
is
foisted
that soldiers who defy orders of their superior officers are exempt

on

the

Court

from the strictures of military law and discipline if such defiance is predicated on an act
otherwise valid under civilian law. Obedience and deference to the military chain of command
and the President as commander-in-chief are the cornerstones of a professional military in the
firm cusp of civilian control. These values of obedience and deference expected of military
officers are content-neutral, beyond the sway of the officers own sense of what is prudent or
rash, or more elementally, of right or wrong. A self-righteous military invites itself as the
scoundrels activist solution to the ills of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria MacapagalArroyo[1] enjoining them and other military officers from testifying before Congress without the
Presidents consent. Petitioners also pray for injunctive relief against a pending preliminary
investigation against them, in preparation for possible court-martial proceedings, initiated
within the military justice system in connection with petitioners violation of the aforementioned
directive.

The Court is cognizant that petitioners, in their defense, invoke weighty constitutional
principles that center on fundamental freedoms enshrined in the Bill of Rights. Although these
concerns will not be

addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount
importance to our civil society, even if not determinative of the resolution of this petition. Had
the relevant issue before us been the right of the Senate to compel the testimony of petitioners,
the constitutional questions raised by them would have come to fore. Such a scenario could
have very well been presented to the Court in such manner, without the petitioners having had
to violate a direct order from their commanding officer. Instead, the Court has to resolve
whether petitioners may be subjected to military discipline on account of their defiance of a
direct order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both
petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel
Alexander Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the
subject incidents, both Gen. Gudani and Col. Balutan were assigned to the Philippine Military
Academy (PMA) in Baguio City, the former as the PMA Assistant Superintendent, and the
latter as the Assistant Commandant of Cadets.[2]

On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of
the AFP to appear at a public hearing before the Senate Committee on National Defense and
Security (Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after
topics concerning the conduct of the 2004 elections emerged in the public eye, particularly
allegations of massive cheating and the surfacing of copies of an audio excerpt purportedly of a
phone conversation between President Gloria Macapagal Arroyo and an official of the
Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner
Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani had been designated as
commander, and Col. Balutan a member, of Joint Task Force Ranao by the AFP Southern
Command. Joint Task Force Ranao was tasked with the maintenance of peace and order during
the 2004 elections in the provinces of Lanao del Norte and Lanao del Sur.[3] `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen.
Senga) were among the several AFP officers who received a letter invitation from Sen. Biazon
to attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through a
letter to Sen. Biazon that he would be unable to attend the hearing due to a previous
commitment in Brunei, but he nonetheless directed other officers from the AFP who were
invited to attend the hearing.[4]
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum
addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was
signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga.[5] Noting that Gen. Gudani
and Col. Balutan had been invited to attend the Senate Committee hearing on 28 September
2005, the Memorandum directed the two officers to attend the hearing.[6] Conformably, Gen.
Gudani and Col. Balutan filed their respective requests for travel authority addressed to the
PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement
of the hearing scheduled for the following day, since the AFP Chief of Staff was himself unable
to attend said hearing, and that some of the invited officers also could not attend as they were

attending to other urgent operational matters. By this time, both Gen. Gudani and Col. Balutan
had already departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to
the PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL
SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT
HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER
BALUTAN PA (GSC) ACCORDINGLY.[7]

The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the
senator that no approval has been granted by the President to any AFP officer to appear before
the hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were
present as the hearing started, and they both testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has
offered additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The
OSG manifests that the couriers of the AFP Command Center had attempted to deliver the radio
message to Gen. Gudanis residence in a subdivision in ParaaqueCity late in the night of 27
September 2005, but they were not permitted entry by the subdivision guards. The next day, 28
September 2005, shortly before the start of the hearing, a copy of Gen. Sengas letter to Sen.
Biazon sent earlier that day was handed at the Senate by Commodore Amable B. Tolentino of
the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he already had a
copy. Further, Gen. Senga called Commodore Tolentino on the latters cell phone and asked to
talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga instructed Commodore
Tolentino to inform Gen. Gudani that it was an order, yet Gen. Gudani still refused to take Gen.
Sengas call.[8]
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of
Gen. Senga issued a statement which noted that the two had appeared before the Senate
Committee in spite of the fact that a guidance has been given that a Presidential approval should
be sought prior to such an appearance; that such directive was in keeping with the time[]honored principle of the Chain of Command; and that the two officers disobeyed a legal order,
in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will
be subjected to General Court Martial proceedings x x x Both Gen. Gudani and Col. Balutan
were likewise relieved of their assignments then.[9]
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued
Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. enjoined officials of the
executive department including the military establishment from appearing in any legislative
inquiry without her approval.[10] This Court subsequently ruled on the constitutionality of the
said executive order in Senate v. Ermita.[11] The relevance of E.O. 464 and Senate to the present
petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through
Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the
Provost Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance
before Col. Galarpe, both petitioners invoked their right to remain silent.[12] The following day,
Gen. Gudani was compulsorily retired from military service, having reached the age of 56.[13]

In an Investigation Report dated 6 October 2005, the OPMG recommended that

petitioners be charged with violation of Article of War 65, on willfully disobeying a superior
officer, in relation to Article of War 97, on conduct prejudicial to the good order and military
discipline.[14] As recommended, the case was referred to a Pre-Trial Investigation Officer
(PTIO) preparatory to trial by the General Court Martial (GCM).[15] Consequently, on 24
October 2005, petitioners were separately served with Orders respectively addressed to them
and signed by respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the
PTIO. The Orders directed petitioners to appear in person before Col. Roa at the Pre-Trial
Investigation of the Charges for violation of Articles 65[16] and 97[17] of Commonwealth Act No.
408,[18] and to submit their counter-affidavits and affidavits of witnesses at the Office of the
Judge Advocate General.[19] The Orders were accompanied by respective charge sheets against
petitioners, accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was
filed, particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga
preventing petitioners from testifying before Congress without her prior approval be declared
unconstitutional; (2) the charges stated in the charge sheets against petitioners be quashed; and
(3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for
and on their behalf or orders, be permanently enjoined from proceeding against petitioners, as a
consequence of their having testified before the Senate on 28 September 2005.[20]
Petitioners characterize the directive from President Arroyo requiring her prior approval before
any AFP personnel appear before Congress as a gag order, which violates the principle of
separation of powers in government as it interferes with the investigation of the Senate
Committee conducted in aid of legislation. They also equate the gag order with culpable
violation of the Constitution, particularly in relation to the publics constitutional right to
information and transparency in matters of public concern. Plaintively, petitioners claim that the
Filipino people have every right to hear the [petitioners] testimonies, and even if the gag order
were unconstitutional, it still was tantamount to the crime of obstruction of justice. Petitioners
further argue that there was no law prohibiting them from testifying before the Senate, and in
fact, they were appearing in obeisance to the authority of Congress to conduct inquiries in aid of
legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military
jurisdiction on account of his compulsory retirement on 4 October 2005. It is pointed out that
Article 2, Title I of the Articles of War defines persons subject to military law as all officers and
soldiers in the active service of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of
petitioners in violating Articles 65 and 97 of the Articles of War is not an issue before this
Court, especially considering that per records, petitioners have not yet been subjected to court
martial proceedings. Owing to the absence of such proceedings, the correct inquiry should be
limited to whether respondents could properly initiate such proceedings preparatory to a formal
court-martial, such as the aforementioned preliminary investigation, on the basis of petitioners
acts surrounding their testimony before the Senate on 28 September 2005. Yet this Court,
consistent with the principle that it is not a trier of facts at first instance, [21] is averse to making
any authoritative findings of fact, for that function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the

Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing
and testified before the Committee, despite the fact that the day before, there was an order from
Gen. Senga (which in turn was sourced per instruction from President Arroyo) prohibiting them
from testifying without the prior approval of the President. Petitioners do not precisely admit
before this Court that they had learned of such order prior to their testimony, although the OSG
asserts that at the very least, Gen. Gudani already knew of such order before he testified. [22] Yet
while this fact may be ultimately material in the court-martial proceedings, it is not
determinative of this petition, which as stated earlier, does not proffer as an issue whether
petitioners are guilty of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of
Gen. Senga, which emanated from the President, could lead to any investigation for courtmartial of petitioners. It has to be acknowledged as a general principle [23] that AFP personnel of
whatever rank are liable under military law for violating a direct order of an officer superior in
rank. Whether petitioners did violate such an order is not for the Court to decide, but it will be
necessary to assume, for the purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the
present petition. Notably, it is not alleged that petitioners were in any way called to task for
violating E.O. 464, but instead, they were charged for violating the direct order of Gen.
Senga not to appear before the Senate Committee, an order that stands independent of the
executive order. Distinctions are called for, since Section 2(b) of E.O. 464 listed generals and
flag officers of the Armed Forces of the Philippines and such other officers who in the judgment
of the Chief of Staff are covered by the executive privilege, as among those public officials
required in Section 3 of E.O. 464 to secure prior consent of the President prior to appearing
before either House of Congress. The Court in Senate declared both Section 2(b) and Section 3
void,[24] and the impression may have been left following Senate that it settled as doctrine, that
the President is prohibited from requiring military personnel from attending congressional
hearings without having first secured prior presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is
encumbered by significant limitations. Insofar as E.O. 464 compelled officials of the executive
branch to seek prior presidential approval before appearing before Congress, the notion of
executive control also comes into consideration.[25] However, the ability of the President to
require a military official to secure prior consent before appearing before Congress pertains to a
wholly different and independent specie of presidential authoritythe commander-in-chief
powers of the President. By tradition and jurisprudence, the commander-in-chief powers of the
President are not encumbered by the same degree of restriction as that which may attach to
executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this
petition as well as the issues raised herein. The decision in Senate was rendered with the
comfort that the nullification of portions of E.O. 464 would bear no impact on the present
petition since petitioners herein were not called to task for violating the executive order.
Moreover, the Court was then cognizant that Senate and this case would ultimately hinge on
disparate legal issues. Relevantly, Senate purposely did not touch upon or rule on the faculty of
the President, under the aegis of the commander-in-chief powers[26] to require military officials
from securing prior consent before appearing before Congress. The pertinent factors in
considering that question are markedly outside of those which did become relevant in
adjudicating the issues raised in Senate. It is in this petition that those factors come into play.

At this point, we wish to dispose of another peripheral issue before we strike at the heart of the
matter. General Gudani argues that he can no longer fall within the jurisdiction of the courtmartial, considering his retirement last 4 October 2005. He cites Article 2, Title I of
Commonwealth Act No. 408, which defines persons subject to military law as, among others,
all officers and soldiers in the active service of the [AFP], and points out that he is no longer in
the active service.
This point was settled against Gen. Gudanis position in Abadilla v. Ramos,[27] where the
Court declared that an officer whose name was dropped from the roll of officers cannot be
considered to be outside the jurisdiction of military authorities when military justice
proceedings were initiated against him before the termination of his service. Once jurisdiction
has been acquired over the officer, it continues until his case is terminated. Thus, the Court
held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time
of the alleged offenses. This jurisdiction having been vested in the military authorities, it is
retained up to the end of the proceedings against Colonel Abadilla. Well-settled is the rule that
jurisdiction once acquired is not lost upon the instance of the parties but continues until the case
is terminated.[28]

Citing Colonel Winthrops treatise on Military Law, the Court further stated:

We have gone through the treatise of Colonel Winthrop and We find the following
passage which goes against the contention of the petitioners, viz
3. Offenders in general Attaching of jurisdiction. It has further been held,
and is now settled law, in regard to military offenders in general, that if the
military jurisdiction has once duly attached to them previous to the date of the
termination of their legal period of service, they may be brought to trial by courtmartial after that date, their discharge being meanwhile withheld. This principle
has mostly been applied to cases where the offense was committed just prior to
the end of the term. In such cases the interests of discipline clearly forbid that the
offender should go unpunished. It is held therefore that if before the day on
which his service legally terminates and his right to a discharge is complete,
proceedings with a view to trial are commenced against him as by arrest or
the service of charges, the military jurisdiction will fully attach and once
attached may be continued by a trial by court-martial ordered and held after
the end of the term of the enlistment of the accused x x x [29]

Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts
complained of and the initiation of the proceedings against him occurred before he compulsorily
retired on 4 October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also
points out that under Section 28 of Presidential Decree No. 1638, as amended, [a]n officer or
enlisted man carried in the retired list [of the Armed Forces of the Philippines] shall be subject
to the Articles of War x x x[30] To this citation, petitioners do not offer any response, and in fact
have excluded the matter of Gen. Gudanis retirement as an issue in their subsequent
memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the gag order that required them to secure presidential
consent prior to their appearance before the Senate, claiming that it violates the constitutional

right to information and transparency in matters of public concern; or if not, is tantamount at

least to the criminal acts of obstruction of justice and grave coercion. However, the proper
perspective from which to consider this issue entails the examination of the basis and authority
of the President to issue such an order in the first place to members of the AFP and the
determination of whether such an order is subject to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is
most crucial to the democratic way of life, to civilian supremacy over the military, and to the
general stability of our representative system of government. The Constitution reposes final
authority, control and supervision of the AFP to the President, a civilian who is not a member of
the armed forces, and whose duties as commander-in-chief represent only a part of the organic
duties imposed upon the office, the other functions being clearly civil in nature.[31] Civilian
supremacy over the military also countermands the notion that the military may bypass civilian
authorities, such as civil courts, on matters such as conducting warrantless searches and
seizures.[32]
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has
allocated specific roles to the legislative and executive branches of government in relation to
military affairs. Military appropriations, as with all other appropriations, are determined by
Congress, as is the power to declare the existence of a state of war. [33]Congress is also
empowered to revoke a proclamation of martial law or the suspension of the writ of habeas
corpus.[34] The approval of the Commission on Appointments is also required before the
President can promote military officers from the rank of colonel or naval captain. [35] Otherwise,
on the particulars of civilian dominance and administration over the military, the Constitution is
silent, except for the commander-in-chief clause which is fertile in meaning and
implication as to whatever inherent martial authority the President may possess.[36]
The commander-in-chief provision in the Constitution is denominated as Section 18,
Article VII, which begins with the simple declaration that [t]he President shall be the
Commander-in-Chief of all armed forces of the Philippines x x x[37] Outside explicit
constitutional limitations, such as those found in Section 5, Article XVI, the commander-inchief clause vests on the President, as commander-in-chief, absolute authority over the persons
and actions of the members of the armed forces. Such authority includes the ability of the
President to restrict the travel, movement and speech of military officers, activities which may
otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col. Kapunan was
ordered confined under house arrest by then Chief of Staff (later President) Gen. Fidel Ramos.
Kapunan was also ordered, as a condition for his house arrest, that he may not issue any press
statements or give any press conference during his period of detention. The Court unanimously
upheld such restrictions, noting:

[T]he Court is of the view that such is justified by the requirements of military
discipline. It cannot be gainsaid that certain liberties of persons in the military service,
including the freedom of speech, may be circumscribed by rules of military discipline. Thus,
to a certain degree, individual rights may be curtailed, because the effectiveness of the
military in fulfilling its duties under the law depends to a large extent on the maintenance of
discipline within its ranks. Hence, lawful orders must be followed without question and
rules must be faithfully complied with, irrespective of a soldier's personal views on the
matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in
the AFP, have to be considered.[39]

Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life
circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the

military package. Those who cannot abide by these limitations normally do not pursue a
military career and instead find satisfaction in other fields; and in fact many of those discharged
from the service are inspired in their later careers precisely by their rebellion against the
regimentation of military life. Inability or unwillingness to cope with military discipline is not a
stain on character, for the military mode is a highly idiosyncratic path which persons are not
generally conscripted into, but volunteer themselves to be part of. But for those who do make
the choice to be a soldier, significant concessions to personal freedoms are expected. After all,
if need be, the men and women of the armed forces may be commanded upon to die for country,
even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully
integrated into the democratic system of governance. The constitutional role of the armed forces
is as protector of the people and of the State.[40] Towards this end, the military must insist upon
a respect for duty and a discipline without counterpart in civilian life. [41] The laws and traditions
governing that discipline have a long history; but they are founded on unique military
exigencies as powerful now as in the past.[42] In the end, it must be borne in mind that the armed
forces has a distinct subculture with unique needs, a specialized society separate from civilian
society. [43] In the elegant prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and
diplomats. They are those of a world apart, a very ancient world, which exists in parallel with the
everyday world but does not belong to it. Both worlds change over time, and the warrior world
adopts in step to the civilian. It follows it, however, at a distance. The distance can never be
closed, for the culture of the warrior can never be that of civilization itself.[44]

Critical to military discipline is obeisance to the military chain of command. Willful

disobedience of a superior officer is punishable by court-martial under Article 65 of the Articles
of War.[45] An individual soldier is not free to ignore the lawful orders or duties assigned by his
immediate superiors. For there would be an end of all discipline if the seaman and marines on
board a ship of war [or soldiers deployed in the field], on a distant service, were permitted to
act upon their own opinion of their rights [or their opinion of the

Presidents intent], and to throw off the authority of the commander whenever they supposed it
to be unlawfully exercised.[46]
Further traditional restrictions on members of the armed forces are those imposed on free
speech and mobility. Kapunan is ample precedent in justifying that a soldier may be restrained
by a superior officer from speaking out on certain matters. As a general rule, the discretion of a
military officer to restrain the speech of a soldier under his/her command will be accorded
deference, with minimal regard if at all to the reason for such restraint. It is integral to military
discipline that the soldiers speech be with the consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the
soldier desires to speak freely on political matters. The Constitution requires that [t]he armed
forces shall be insulated from partisan politics, and that [n]o member of the military shall
engage directly or indirectly in any partisan political activity, except to vote.[47] Certainly, no
constitutional provision or military indoctrination will eliminate a soldiers ability to form a
personal political opinion, yet it is vital that such opinions be kept out of the public eye. For
one, political belief is a potential source of discord among people, and a military torn by
political strife is incapable of fulfilling its constitutional function as protectors of the people and
of the State. For another, it is ruinous to military discipline to foment an atmosphere that
promotes an active dislike of or dissent against the President, the commander-in-chief of the
armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or
distrust. This fundamental principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our countrys recent past is
marked by regime changes wherein active military dissent from the chain of command formed a
key, though not exclusive, element. The Court is not blind to history, yet it is a judge not of
history but of the Constitution. The Constitution, and indeed our modern democratic order,
frown in no uncertain terms on a politicized military, informed as they are on the trauma of
absolute martial rule. Our history might imply that a political military is part of the natural
order, but this view cannot be affirmed by the legal order. The evolutionary path of our young
democracy necessitates a reorientation from this view, reliant as our socio-political culture has
become on it. At the same time, evolution mandates a similar demand that our system of
governance be more responsive to the needs and aspirations of the citizenry, so as to avoid an
environment vulnerable to a military apparatus able at will to exert an undue influence in our
polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is
another necessary restriction on members of the military. A soldier cannot leave his/her post
without the consent of the commanding officer. The reasons are self-evident. The commanding
officer has to be aware at all times of the location of the troops under command, so as to be able
to appropriately respond to any exigencies. For the same reason, commanding officers have to
be able to restrict the movement or travel of their soldiers, if in their judgment, their presence at
place of call of duty is necessary. At times, this may lead to unsentimental, painful
consequences, such as a soldier being denied permission to witness the birth of his first-born, or
to attend the funeral of a parent. Yet again, military life calls for considerable personal
sacrifices during the period of conscription, wherein the higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding
officer before he/she may leave his destination. A soldier who goes from the properly appointed
place of duty or absents from his/her command, guard, quarters, station, or camp without proper
leave is subject to punishment by court-martial.[48] It is even clear from the record that
petitioners had actually requested for travel authority from the PMA in Baguio City to Manila,

to attend the Senate Hearing.[49] Even petitioners are well aware that it was necessary for them
to obtain permission from their superiors before they could travel to Manila to attend the Senate
Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we
have discussed. They seek to be exempted from military justice for having traveled to the
Senate to testify before the Senate Committee against the express orders of Gen. Senga, the
AFP Chief of Staff. If petitioners position is affirmed, a considerable exception would be carved
from the unimpeachable right of military officers to restrict the speech and movement of their
juniors. The ruinous consequences to the chain of command and military discipline simply
cannot warrant the Courts imprimatur on petitioners position.

V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities
surrounding military discipline. After all, petitioners seek to impress on us that their acts are
justified as they were responding to an invitation from the Philippine Senate, a component of
the legislative branch of government. At the same time, the order for them not to testify
ultimately came from the President, the head of the executive branch of government and the
commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed
forces from testifying before a legislative inquiry? We hold that the President has constitutional
authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a
military officer who defies such injunction is liable under military justice. At the same time, we
also hold that any chamber of Congress which seeks the appearance before it of a military
officer against the consent of the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify before it may be
compelled to do so by the President. If the President is not so inclined, the President may be
commanded by judicial order to compel the attendance of the military officer. Final judicial
orders have the force of the law of the land which the President has the duty to faithfully
execute.[50]
Explication of these principles is in order.

As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of
prior consent on executive officials summoned by the legislature to attend a congressional
hearing. In doing so, the Court recognized the considerable limitations on executive privilege,
and affirmed that the privilege must be formally invoked on specified grounds. However, the
ability of the President to prevent military officers from testifying before Congress does
not turn on executive privilege, but on the Chief Executives power as commander-in-chief
to control the actions and speech of members of the armed forces. The Presidents
prerogatives as commander-in-chief are not hampered by the same limitations as in
executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek
presidential approval before appearing before Congress is based foremost on the notion that a
contrary rule unduly diminishes the prerogatives of the President as commander-in-chief.
Congress holds significant control over the armed forces in matters such as budget
appropriations and the approval of higher-rank promotions,[51] yet it is on the President that the

Constitution vests the title as commander-in-chief and all the prerogatives and functions
appertaining to the position. Again, the exigencies of military discipline and the chain of
command mandate that the Presidents ability to control the individual members of the armed
forces be accorded the utmost respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation affirm that the officer has to
choose the President. After all, the Constitution prescribes that it is the President, and not the
Senate, who is the commander-in-chief of the armed forces.[52]

At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the
legislatures functions is the conduct of inquiries in aid of legislation.[53] Inasmuch as it is illadvised for Congress to interfere with the Presidents power as commander-in-chief, it is
similarly detrimental for the President to unduly interfere with Congresss right to conduct
legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified
anyway despite the presidential prohibition. Yet the Court is aware that with its pronouncement
today that the President has the right to require prior consent from members of the armed forces,
the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which
members of the military may be compelled to attend legislative inquiries even if the President
desires otherwise, a modality which does not offend the Chief Executives prerogatives as
commander-in-chief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the
legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress
must do so. There is considerable interplay between the legislative and executive branches,
informed by due deference and respect as to their various constitutional functions. Reciprocal
courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to
compel the other to a particular mode of behavior. The judiciary, the third coordinate branch of
government, does not enjoy a similar dynamic with either the legislative or executive branches.
Whatever weakness inheres on judicial power due to its inability to originate national policies
and legislation, such is balanced by the fact that it is the branch empowered by the Constitution
to compel obeisance to its rulings by the other branches of government.
As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon
Committee,[55] among others, the Court has not shirked from reviewing the exercise by Congress
of its power of legislative inquiry.[56] Arnault recognized that the legislative power of inquiry
and the process to enforce it, is an essential and appropriate auxiliary to the legislative
function.[57] On the other hand, Bengzon acknowledged that the power of both houses of
Congress to conduct inquiries in aid of legislation is not absolute or unlimited, and its exercise
is circumscribed by Section 21, Article VI of the Constitution.[58] From these premises, the
Court enjoined the Senate Blue Ribbon Committee from requiring the petitioners
in Bengzon from testifying and producing evidence before the committee, holding that the
inquiry in question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope
and limitations on the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, with process to enforce it, is grounded on the
necessity of information in the legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise legislation on that subject, by

parity of reasoning, Congress has the right to that information and the power to compel the
disclosure thereof.
As evidenced by the American experience during the so-called McCarthy era, however, the right
of Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse
than executive or judicial power. It may thus be subjected to judicial review pursuant to the
Courts certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such
inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to
avoid such result as occurred in Bengzon is to indicate in its invitations to the public officials
concerned, or to any person for that matter, the possible needed statute which prompted the need
for the inquiry. Given such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof, there would be less
room for speculation on the part of the person invited on whether the inquiry is in aid of
legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power
of inquiry. The provision requires that the inquiry be done in accordance with the Senate or
Houses duly published rules of procedure, necessarily implying the constitutional infirmity of an
inquiry conducted without duly published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the
persons affected, even if they belong to the executive branch. Nonetheless, there may be
exceptional circumstances wherein a clear pattern of abuse of the legislative power of inquiry
might be established, resulting in palpable violations of the rights guaranteed to members of the
executive department under the Bill of Rights. In such instances, depending on the particulars of
each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial
sanction[59].

In Senate, the Court ruled that the President could not impose a blanket prohibition barring
executive officials from testifying before Congress without the Presidents consent
notwithstanding the invocation of executive privilege to justify such prohibition. The Court did
not rule that the power to conduct legislative inquiry ipso facto superseded the claim of
executive privilege, acknowledging instead that the viability of executive privilege stood on a
case to case basis. Should neither branch yield to the other branchs assertion, the constitutional
recourse is to the courts, as the final arbiter if the dispute. It is only the courts that can compel,
with conclusiveness, attendance or non-attendance in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to
allow a member of the AFP to appear before Congress, the legislative body seeking such
testimony may seek judicial relief to compel the attendance. Such judicial action should be
directed at the heads of the executive branch or the armed forces, the persons who wield
authority and control over the actions of the officers concerned. The legislative purpose of such
testimony, as well as any defenses against the same whether grounded on executive privilege,
national security or similar concerns would be accorded due judicial evaluation. All the
constitutional considerations pertinent to either branch of government may be raised, assessed,
and ultimately weighed against each other. And once the courts speak with finality, both
branches of government have no option but to comply with the decision of the courts, whether
the effect of the decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate
disputes between the legislative and executive branches of government on the proper
constitutional parameters of power.[60] This is the fair and workable solution implicit in the
constitutional allocation of powers among the three branches of government. The judicial filter
helps assure that the particularities of each case would ultimately govern, rather than any

overarching principle unduly inclined towards one branch of government at the expense of the
other. The procedure may not move as expeditiously as some may desire, yet it ensures
thorough deliberation of all relevant and cognizable issues before one branch is compelled to
yield to the other. Moreover, judicial review does not preclude the legislative and executive
branches from negotiating a mutually acceptable solution to the impasse. After all, the two
branches, exercising as they do functions and responsibilities that are political in nature, are free
to smooth over the thorns in their relationship with a salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of
the President, as commander-in-chief, to authorize the appearance of the military officers
before Congress. Even if the President has earlier disagreed with the notion of officers
appearing before the legislature to testify, the Chief Executive is nonetheless obliged to
comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the
Presidents order on them and other military officers not to testify before Congress without the
Presidents consent. Yet these issues ultimately detract from the main point that they testified
before the Senate despite an order from their commanding officer and their commander-in-chief
for them not to do so,[61] in contravention of the traditions of military discipline which we

affirm today. The issues raised by petitioners could have very well been raised and properly
adjudicated if the proper procedure was observed. Petitioners could have been appropriately
allowed to testify before the Senate without having to countermand their Commander-in-chief
and superior officer under the setup we have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this
petition.
Petitioners may have been of the honest belief that they were defying a direct order of their
Commander-in-Chief and Commanding General in obeisance to a paramount idea formed
within their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided
by the superlative principle that is the Constitution, the embodiment of the national conscience.
The Constitution simply does not permit the infraction which petitioners have allegedly
committed, and moreover, provides for an orderly manner by which the same result could have
been achieved without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

REYNATO S. PUNO
Associate Justice

ONSUELO YNARES-SANTIAGO
Associate Justice

ANTONIO T. CARPIO
Associate Justice

LEONARDO A. QUISUMBING
Associate Justice

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

(on leave)
RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ROMEO J. CALLEJO, SR.

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CANCIO C. GARCIA
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN.
Chief Justice

[1]

Initially denominated as the lead respondent in this petition. However, in a Resolution dated 15 November 2005, the Court
ordered the dismissal of the petition as against President Arroyo, owing to her immunity from suit during her incumbency as
President. See rollo, p. 87. See also Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, 2 March 2001, 353 SCRA 452, 516-522.
[2]

Rollo, pp. 15-18.

[3]

Id. at 18.

[4]

Id. at 75.

[5]

Id. at 76-77.

[6]

Id.

[7]

Id. at 81. Capitals not ours.

[8]

Id. at 111-112.

[9]

Id. at 83.

[10]

Id. at 111.

[11]

G.R. Nos. 169777, 169659, 169660, 169667, 169834, 171246, 20 April 2006.

[12]

See rollo, pp. 52, 67.

[13]

Pursuant to Presidential Decree No. 1638, Sec. 5(a) & 17 as amended, and Presidential Administrative Order No. 150 (4
January 1990).
[14]

These articles of war are contained in Commonwealth Act No. 408, as amended.

[15]

Rollo, p. 68.

[16]

For assaulting or willfully disobeying superior officer. See Article 65, Com. Act No. 408 (1938).

[17]

A general article which punishes all disorders and neglects to the prejudice of good order and military discipline and all
conduct of a nature to bring discredit upon the military service x x x See Com. Act No. 408 (1938), Art. 97,
[18]

Commonly referred to as the Articles of War.

[19]

Rollo, pp. 45, 59.

[20]

Id. at 42.

[21]

See e.g., Far East Bank and Trust Co. v. Court of Appeals, 326 Phil. 15, 18 (1996).

[22]

Supra note 8.

[23]

As affirmed by Com. Act No. 408, Art. 65 as amended. Supra note 14.

[24]

The writer of this ponencia wrote a Separate Opinion to the Resolution dated 14 July 2005 (denying respondents motion
for reconsideration), wherein, concurring in the result, he elucidated on his position that Sections 2(b) and 3 of E.O. 464 are valid on
its face as they are based on the Presidents constitutional power of executive control, but void as applied.
[25]

See CONSTITUTION, Art. VII, Sec. 17, which reads, Sec. 17. The President shall have control of all
the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. See also Senate v. Ermita, G.R.
Nos. 169777, 169659, 169660, 169667, 169834, 171246, 14 July, 2005 Separate Opinion, J. Tinga.
[26]

See CONSTITUTION, Art. VII, Sec. 18 , infra.

[27]

No. L-79173, 7 December 1987, 156 SCRA 92.

[28]

Id. at 102.

[29]

Id. at 104-105. Emphasis supplied.

[30]

See rollo, p. 148.

[31]

See Carpio v. Executive Secretary, G.R. No. 96409, 14 February 1992, 206 SCRA 290, 302; citing THE
CONSTITUTION, A COMMENTARY, by Fr. Joaquin Bernas, S.J., Vol. II, p. 212.
[32]

See Alih v. Castro, No. L-69401, 23 June 1987, 151 SCRA 279, 286.

[33]

See CONSTITUTION, Art. VI, Sections 24 & 23(1), respectively. Also worth noting, it was by a statute that courtsmartial were vested jurisdiction to try acts punishable under the Articles of War. See Articles 12 to 15, Com. Act No. 408, as
amended. See also Rep. Act No. 7055.
[34]

See CONSTITUTION, Art. VII, Sec. 18.

[35]

See CONSTITUTION, Art. VII, Sec. 16.

[36]

Laurence Tribe notes in his opus, American Constitutional Law, that [m]ore recently, it has become the practice to refer to
the Commander in Chief Clause for whatever inherent martial authority the Executive may possess. L. TRIBE, I AMERICAN
CONSTITUTIONAL LAW, 3rd ed. (2000), at 658. A similar trend appears to have developed in this jurisdiction.
[37]

See CONSTITUTION , Art. VII, Sec. 17.

[38]

No. L-83177, 6 December 1988, 168 SCRA 264.

[39]

Id. at 275. Emphasis supplied.

[40]

CONSTITUTION, Art. II, Sec. 3.

[41]

Schelsinger v. Councilman, 420 US 738, 757 (1975). [T]he rights of men in the armed forces must perforce be conditioned
to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise

balance to be struck in this adjustment. Burns v. Wilson, 346 U.S. 138, 140 (1952); citing Re: Grimley (United States v. Grimley)
137 U.S. 147, 34 L ed 636, 11 S Ct 52 (1890); Hiatt v. Brown, 339 U.S. 103, 94 L ed. 691, 70 S Ct 495 (1950).
[42]

Id.

[43]

Parker v. Levy, 417 U.S. 733, 743 (1974).

[44]

John Keegan, A HISTORY OF WARFARE, p. xvi (1993)

[45]

See Article 65, Com. Act No. 408 (as amended)

[46]

New v. Army, 50 M.J. 729, Amry Ct. Crim. App., 1999; citing United States v. Rockwood, 48 M.J. 501, Army Ct. Crim.
App., 1998. Emphasis not ours.
[47]

See CONSTITUTION, Art. XVI, Sec. 5(3).

[48]

See Art. 63, Com. Act No. 408 (1938).

[49]

See rollo, pp. 78, 79. In their petition, petitioners admit having requested for travel authority with their immediate
superior, the PMA Superintendent. See id. at 22, 23.
[50]

See Article 8, Civil Code, in connection with Section 17, Article VII, Constitution.

[51]

Supra notes 34 & 36.

[52]

Supra note 38.

[53]

See CONSTITUTION, Art. VI, Sec. 21. See also Senate v. Ermita, supra note 11.

[54]

87 Phil. 29 (1950)

[55]

G.R. No. 89914, 20 November 1991, 203 SCRA 767.

[56]

The allocation of constitutional boundaries is a task that this Court must perform under the Constitution The Court is thus
of the considered view that it has jurisdiction over the present controversy for the purpose of determining the scope and extent of the
power of the Senate Blue Ribbon Committee to conduct inquiries into private affairs in purported aid of legislation. Bengzon, Jr. v.
Senate Blue Ribbon Committee, id., at 777.
[57]

Arnault v. Nazareno, supra note 54, at 45.

[58]

Bengzon v. Senate Blue Ribbon Committee, supra note 55, at 777.

[59]

Senate v. Ermita, supra note 11.

[60]

See e.g., Angara v. Electoral Commission, 63 Phil. 139, 156-157 (1936). Further, [t]he role of the judiciary in mapping the
metes and bounds of powers of the different branches of government was redefined in the 1987 Constitution which expanded the
jurisdiction of this Court to include the determination of grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. Macalintal v. COMELEC, 453 Phil. 586, 740 (2003), J. Puno, Concurring
and Dissenting Opinion.
[61]

As stated earlier though, it is controverted whether petitioners were actually aware of the directive from the President
before they testified before the Senate. See note 21. This factual matter, which will necessarily impact on the deliberate intent of the
petitioners, is for the court-martial to decide.

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B.

ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN.
ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary
restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito
Estrada commanding the deployment of the Philippine Marines (the Marines) to join the Philippine
National Police (the PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and
carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint
visibility patrols for the purpose of crime prevention and suppression. The Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP
and the Secretary of the Interior and Local Government were tasked to execute and implement the
said order. In compliance with the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000 [1] (the LOI) which detailed
the manner by which the joint visibility patrols, called Task Force Tulungan, would be
conducted.[2] Task Force Tulungan was placed under the leadership of the Police Chief of Metro
Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines in
a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP
Chief.[3] In the Memorandum, the President expressed his desire to improve the peace and order
situation in Metro Manila through a more effective crime prevention program including increased
police patrols.[4] The President further stated that to heighten police visibility in the metropolis,
augmentation from the AFP is necessary.[5] Invoking his powers as Commander-in-Chief under
Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP
Chief to coordinate with each other for the proper deployment and utilization of the Marines to assist
the PNP in preventing or suppressing criminal or lawless violence.[6] Finally, the President declared
that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a
reasonable period only, until such time when the situation shall have improved. [7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx

2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the
suppression of crime prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals
but also by organized syndicates whose members include active and former police/military
personnel whose training, skill, discipline and firepower prove well-above the present
capability of the local police alone to handle. The deployment of a joint PNP NCRPOPhilippine Marines in the conduct of police visibility patrol in urban areas will reduce the
incidence of crimes specially those perpetrated by active or former police/military
personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM
visibility patrols to keep Metro Manila streets crime-free, through a sustained street
patrolling to minimize or eradicate all forms of high-profile crimes especially those
perpetrated by organized crime syndicates whose members include those that are welltrained, disciplined and well-armed active or former PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila and
to preserve the internal security of the state against insurgents and other serious threat to
national security, although the primary responsibility over Internal Security Operations still
rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of highprofile crimes perpetrated by organized crime syndicates operating in Metro Manila. This
concept requires the military and police to work cohesively and unify efforts to ensure a
focused, effective and holistic approach in addressing crime prevention. Along this line,
the role of the military and police aside from neutralizing crime syndicates is to bring a
wholesome atmosphere wherein delivery of basic services to the people and development
is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local
Police Units are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force
TULUNGAN shall be organized to provide the mechanism, structure, and procedures for
the integrated planning, coordinating, monitoring and assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City),
Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations
and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to
annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
I

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE

OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY,
EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW
ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF
ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY
IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN
DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE
MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION

IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT
SHOULD REALLY BE UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to
uphold the rule of law and the Constitution, the IBP questions the validity of the deployment and
utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated 25 January 2000,
required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor
General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in
deploying the Marines, contending, among others, that petitioner has no legal standing; that the
question of deployment of the Marines is not proper for judicial scrutiny since the same involves a
political question; that the organization and conduct of police visibility patrols, which feature the team-

up of one police officer and one Philippine Marine soldier, does not violate the civilian supremacy
clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing;
(2) Whether or not the Presidents factual determination of the necessity of calling the armed forces is
subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in
joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and
the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to
raise the issues in the petition. Second, the President did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy
clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of
judicial review only if the following requisites are complied with, namely: (1) the existence of an actual
and appropriate case; (2) a personal and substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.[12]

The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that is
being challenged.[13] The term interest means a material interest, an interest in issue affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.[14] The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court depends for illumination of difficult constitutional questions. [15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the
rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis
in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This
is too general an interest which is shared by other groups and the whole citizenry. Based on the
standards above-stated, the IBP has failed to present a specific and substantial interest in the
resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of
Court, is to elevate the standards of the law profession and to improve the administration of justice is
alien to, and cannot be affected by the deployment of the Marines. It should also be noted that the
interest of the National President of the IBP who signed the petition, is his alone, absent a formal
board resolution authorizing him to file the present action. To be sure, members of the BAR, those in
the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming that it has
duly authorized the National President to file the petition, has not shown any specific injury which it
has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its
members, whom the IBP purportedly represents, has sustained any form of injury as a result of the
operation of the joint visibility patrols. Neither is it alleged that any of its members has been arrested
or that their civil liberties have been violated by the deployment of the Marines. What the IBP projects
as injurious is the supposed militarization of law enforcement which might threaten Philippine
democratic institutions and may cause more harm than good in the long run. Not only is the
presumed injury not personal in character, it is likewise too vague, highly speculative and uncertain to
satisfy the requirement of standing. Since petitioner has not successfully established a direct and
personal injury as a consequence of the questioned act, it does not possess the personality to assail
the validity of the deployment of the Marines. This Court, however, does not categorically rule that the
IBP has absolutely no standing to raise constitutional issues now or in the future. The IBP must, by

way of allegations and proof, satisfy this Court that it has sufficient stake to obtain judicial resolution
of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing when paramount
interest is involved.[16] In not a few cases, the Court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the
people.[17] Thus, when the issues raised are of paramount importance to the public, the Court may
brush aside technicalities of procedure.[18] In this case, a reading of the petition shows that the IBP
has advanced constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents.Moreover, because peace and order are under
constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the
Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go
away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing
and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the President of
the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility
patrols. In this regard, the IBP admits that the deployment of the military personnel falls under the
Commander-in-Chief powers of the President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or suppress lawless violence, invasion
or rebellion. What the IBP questions, however, is the basis for the calling of the Marines under the
aforestated provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence, invasion or
rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that this Court review the
sufficiency of the factual basis for said troop [Marine] deployment. [19]
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of
calling the armed forces is not proper for judicial scrutiny since it involves a political question and the
resolution of factual issues which are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and limits,
and the extent of judicial review. But, while this Court gives considerable weight to the parties
formulation of the issues, the resolution of the controversy may warrant a creative approach that goes
beyond the narrow confines of the issues raised. Thus, while the parties are in agreement that the
power exercised by the President is the power to call out the armed forces, the Court is of the view
that the power involved may be no more than the maintenance of peace and order and promotion of
the general welfare.[20] For one, the realities on the ground do not show that there exist a state of
warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon
the citizenry, a point discussed in the latter part of this decision. In the words of the late Justice Irene
Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the Presidents powers as protector of
the peace. [Rossiter, The American Presidency]. The power of the President to keep the
peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its
existence. The President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day problems of maintaining
peace and order and ensuring domestic tranquility in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in
times of peace is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the President commander-inchief the enumeration of powers that follow cannot be said to exclude the Presidents
exercising as Commander-in-Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law, in order to
keep the peace, and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the
controversy will reach a similar result.

We now address the Solicitor Generals argument that the issue involved is not susceptible to
review by the judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for
court review.[22] It pertains to issues which are inherently susceptible of being decided on grounds
recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over actual
constitutional cases brought before it even in instances that are ripe for resolution. One class of cases
wherein the Court hesitates to rule on are political questions. The reason is that political questions are
concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the separation of powers, the
courts will not normally interfere with the workings of another co-equal branch unless the case shows
a clear need for the courts to step in to uphold the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of government.
Thus, if an issue is clearly identified by the text of the Constitution as matters for discretionary action
by a particular branch of government or to the people themselves then it is held to be a political
question. In the classic formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface
of any case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the impossibility of a courts undertaking
independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or
the potentiality of embarassment from multifarious pronouncements by various departments on the
one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law. Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government.[25] Under this definition, the Court cannot agree with the Solicitor
General that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether
the prescribed qualifications or conditions have been met or the limitations respected, is justiciable the problem being one of legality or validity, not its wisdom.[26] Moreover, the jurisdiction to delimit
constitutional boundaries has been given to this Court. [27] When political questions are involved, the
Constitution limits the determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility. [29] Under this definition, a court is
without power to directly decide matters over which full discretionary authority has been
delegated. But while this Court has no power to substitute its judgment for that of Congress or of the
President, it may look into the question of whether such exercise has been made in grave abuse of
discretion.[30] A showing that plenary power is granted either department of government, may not be
an obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to
justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom.This is clear
from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be
called upon to overrule the Presidents wisdom or substitute its own.However, this does not prevent
an examination of whether such power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the necessity of calling
out the armed forces, it is incumbent upon the petitioner to show that the Presidents decision is totally
bereft of factual basis. The present petition fails to discharge such heavy burden as there is no
evidence to support the assertion that there exist no justification for calling out the armed
forces. There is, likewise, no evidence to support the proposition that grave abuse was committed
because the power to call was exercised in such a manner as to violate the constitutional provision on
civilian supremacy over the military. In the performance of this Courts duty of purposeful
hesitation[32] before declaring an act of another branch as unconstitutional, only where such grave
abuse of discretion is clearly shown shall the Court interfere with the Presidents judgment. To doubt
is to sustain.

There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise of
such power. Section 18, Article VII of the Constitution, which embodies the powers of the President
as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ ofhabeas corpus, or place the Philippines or any part thereof under
martial law.
xxx
The full discretionary power of the President to determine the factual basis for the exercise of the
calling out power is also implied and further reinforced in the rest of Section 18, Article VII which
reads, thus:
xxx

Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all
its Members in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation
or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the Presidents action to call out the armed
forces. The distinction places the calling out power in a different category from the power to declare
martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the
framers of the Constitution would have simply lumped together the three powers and provided for
their revocation and review without any qualification. Expressio unius est exclusio alterius. Where the
terms are expressly limited to certain matters, it may not, by interpretation or construction, be
extended to other matters.[33] That the intent of the Constitution is exactly what its letter says, i.e., that
the power to call is fully discretionary to the President, is extant in the deliberation of the
Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of
the President as Commander-in-Chief. First, he can call out such Armed Forces as may
be necessary to suppress lawless violence; then he can suspend the privilege of the writ
of habeas corpus, then he can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the
writ of habeas corpus, his judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by the National Assembly. But
when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.
xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the matter can
be handled by the first sentence: The President may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for
handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the
matter can be handled by the First Sentence: The President....may call out such Armed
Forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that
is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing
martial law or suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers highlights the intent
to grant the President the widest leeway and broadest discretion in using the power to call out
because it is considered as the lesser and more benign power compared to the power to suspend the
privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and individual freedoms, and thus
necessitating safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to
suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must
concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These
conditions are not required in the case of the power to call out the armed forces. The only criterion is
that whenever it becomes necessary, the President may call the armed forces to prevent or suppress
lawless violence, invasion or rebellion." The implication is that the President is given full discretion
and wide latitude in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without
factual basis, then this Court cannot undertake an independent investigation beyond the
pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot
be objectively established since matters considered for satisfying the same is a combination of
several factors which are not always accessible to the courts. Besides the absence of textual
standards that the court may use to judge necessity, information necessary to arrive at such judgment
might also prove unmanageable for the courts. Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President
might decide that there is a need to call out the armed forces may be of a nature not constituting
technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as highly confidential or affecting the security of
the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the
decision to call out the military to prevent or suppress lawless violence must be done swiftly and
decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected to unfettered judicial
scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by
an injunction or a temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-inChief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary
to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner
can show that the exercise of such discretion was gravely abused, the Presidents exercise of
judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed
forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies,

holdups, kidnappings and carnappings continue to occur in Metro Manila...[35] We do not doubt the
veracity of the Presidents assessment of the situation, especially in the light of present
developments. The Court takes judicial notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other public places. These are among the areas
of deployment described in the LOI 2000. Considering all these facts, we hold that the President has
sufficient factual basis to call for military aid in law enforcement and in the exercise of this
constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does it
infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the
Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is
militarized in violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of military
assets for civilian law enforcement. The participation of the Marines in the conduct of joint visibility
patrols is appropriately circumscribed. The limited participation of the Marines is evident in the
provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines
authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at
all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols.[37] Under the LOI, the police forces are
tasked to brief or orient the soldiers on police patrol procedures. [38] It is their responsibility to direct
and manage the deployment of the Marines.[39] It is, likewise, their duty to provide the necessary
equipment to the Marines and render logistical support to these soldiers. [40] In view of the foregoing, it
cannot be properly argued that military authority is supreme over civilian authority. Moreover, the
deployment of the Marines to assist the PNP does not unmake the civilian character of the police
force. Neither does it amount to an insidious incursion of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it
does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he
does not exercise any authority or control over the same.Since none of the Marines was incorporated
or enlisted as members of the PNP, there can be no appointment to civilian position to speak
of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian
character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance required
in conducting the patrols. As such, there can be no insidious incursion of the military in civilian affairs
nor can there be a violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the
assistance of the military in the implementation and execution of certain traditionally civil functions. As
correctly pointed out by the Solicitor General, some of the multifarious activities wherein military aid
has been rendered, exemplifying the activities that bring both the civilian and the military together in a
relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]

12. Anti-drug enforcement activities;[53]

13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]

This unquestionably constitutes a gloss on executive power resulting from a systematic,

unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before
questioned.[59] What we have here is mutual support and cooperation between the military and civilian
authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military
force for domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly
provide for the power to call, the use of military personnel by civilian law enforcement officers is
allowed under circumstances similar to those surrounding the present deployment of the Philippine
Marines. Under the Posse Comitatus Act[61] of the US, the use of the military in civilian law
enforcement is generally prohibited, except in certain allowable circumstances. A provision of the Act
states:

1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air Force
as posse comitatus or otherwise to execute the laws shall be fined not more than $10,000
or imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use of military
personnel, the US courts[63] apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens to the
exercise of military power which was regulatory, proscriptive, or compulsory[64] George
Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards for assessing acceptable
involvement of military personnel in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL
AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature,
either presently or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to mean
that military involvement, even when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or
compels some conduct on the part of those claiming relief. A mere threat of some future
injury would be insufficient.(emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to determine
whether there is permissible use of the military in civilian law enforcement, the conclusion is inevitable
that no violation of the civilian supremacy clause in the Constitution is committed. On this point, the
Court agrees with the observation of the Solicitor General:

3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or
compulsory military power. First, the soldiers do not control or direct the operation. This is evident from Nos.
[66]
[67]
[68]
6, 8(k) and 9(a) of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No.
[69]
9(d) of Annex A, all arrested persons are brought to the nearest police stations for proper disposition. And last,
[70]
these soldiers apply no coercive force. The materials or equipment issued to them, as shown in No. 8(c) of Annex
A, are all low impact and defensive in character. The conclusion is that there being no exercise of regulatory,
proscriptive or compulsory military power, the deployment of a handful of Philippine Marines constitutes no
[71]
impermissible use of military power for civilian law enforcement.

It appears that the present petition is anchored on fear that once the armed forces are deployed,
the military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions,
however, are unfounded. The power to call the armed forces is just that - calling out the armed
forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or jeopardized the civil liberties of

the people, this Court is not inclined to overrule the Presidents determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single
citizen has complained that his political or civil rights have been violated as a result of the deployment
of the Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that
the joint visibility patrol was conceived. Freedom and democracy will be in full bloom only when
people feel secure in their homes and in the streets, not when the shadows of violence and anarchy
constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.

SEPARATE OPINION
PUNO, J.:

If the case at bar is significant, it is because of the government attempt to foist the political
question doctrine to shield an executive act done in the exercise of the commander-in-chief powers
from judicial scrutiny. If the attempt succeeded, it would have diminished the power of judicial
review and weakened the checking authority of this Court over the Chief Executive when he
exercises his commander-in-chief powers. The attempt should remind us of the tragedy that
befell the country when this Court sought refuge in the political question doctrine and
forfeited its most important role as protector of the civil and political rights of our people. The
ongoing conflict in Mindanao may worsen and can force the Chief Executive to resort to the
use of his greater commander-in-chief powers, hence, this Court should be extra cautious in
assaying similar attempts. A laid back posture may not sit well with our people considering
that the 1987 Constitution strengthened the checking powers of this Court and expanded its
jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction xxx on the
part of any branch or instrumentality of the Government.1
The importance of the issue at bar includes this humble separate opinion. We can best perceive
the different intersecting dimensions of the political question doctrine by viewing them from the
broader canvass of history. Political questions are defined as those questions which under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
government.2 They have two aspects: (1) those matters that are to be exercised by the people in their
primary political capacity and (2) matters which have been specifically delegated to some other
department or particular office of the government, with discretionary power to act. 3 The exercise of the
discretionary power of the legislative or executive branch of government was often the area where the
Court had to wrestle with the political question doctrine.4
A brief review of some of our case law will thus give us a sharper perspective of the political
question doctrine. This question confronted the Court as early as 1905 in the case ofBarcelon v.
Baker.5 The Governor-General of the Philippine Islands, pursuant to a resolution of the Philippine
Commission, suspended the privilege of the writ of habeas corpus in Cavite and Batangas based on
a finding of open insurrection in said provinces. Felix Barcelon, who was detained by constabulary
officers in Batangas, filed a petition for the issuance of a writ of habeas corpus alleging that there was
no open insurrection in Batangas. The issue to resolve was whether or not the judicial department
may investigate the facts upon which the legislative (the Philippine Commission) and executive (the
Governor-General) branches of government acted in suspending the privilege of the writ.
The Court ruled that under our form of government, one department has no authority to inquire
into the acts of another, which acts are performed within the discretion of the other
department.6 Surveying American law and jurisprudence, it held that whenever a statute gives
discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the
statute constitutes him the sole judge of the existence of those facts.7 Since the Philippine Bill of
1902 empowered the Philippine Commission and the Governor-General to suspend the privilege of
the writ of habeas corpus, this power is exclusively within the discretion of the legislative and

executive branches of government. The exercise of this discretion is conclusive upon the
courts.8
The Court further held that once a determination is made by the executive and legislative
departments that the conditions justifying the assailed acts exists, it will presume that the conditions
continue until the same authority decide that they no longer exist. 9 It adopted the rationale that the
executive branch, thru its civil and military branches, are better situated to obtain information about
peace and order from every corner of the nation, in contrast with the judicial department, with its very
limited machinery.10 The seed of the political question doctrine was thus planted in Philippine
soil.
The doctrine barring judicial review because of the political question doctrine was next
applied to the internal affairs of the legislature. The Court refused to interfere in the legislative
exercise of disciplinary power over its own members. In the 1924 case of Alejandrino v.
Quezon,11 Alejandrino, who was appointed Senator by the Governor-General, was declared by
Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course of a
debate, and was suspended from office for one year. Senator Alejandrino filed a petition for
mandamus and injunction to compel the Senate to reinstate him. The Court held that under the Jones
Law, the power of the Senate to punish its members for disorderly behavior does not authorize it to
suspend an appointive member from the exercise of his office. While the Court found that the
suspension was illegal, it refused to issue the writ of mandamus on the ground that "the Supreme
Court does not possess the power of coercion to make the Philippine Senate take any particular
action. [T]he Philippine Legislature or any branch thereof cannot be directly controlled in the exercise
of their legislative powers by any judicial process."12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino,13 three
senators-elect who had been prevented from taking their oaths of office by a Senate resolution
repaired to this Court to compel their colleagues to allow them to occupy their seats contending that
only the Electoral Tribunal had jurisdiction over contests relating to their election, returns and
qualifications. Again, the Court refused to intervene citing Alejandrino and affirmed the inherent right
of the legislature to determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives who
were proclaimed elected by Comelec were not allowed by Congress to take part in the voting for the
passage of the Parity amendment to the Constitution. If their votes had been counted, the affirmative
votes in favor of the proposed amendment would have been short of the necessary three-fourths vote
in either House of Congress to pass the amendment. The amendment was eventually submitted to
the people for ratification. The Court declined to intervene and held that a proposal to amend the
Constitution is a highly political function performed by Congress in its sovereign legislative capacity. 15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the legality of his
detention ordered by the Senate for his refusal to answer questions put to him by members of one of
its investigating committees. This Court refused to order his release holding that the process by which
a contumacious witness is dealt with by the legislature is a necessary concomitant of the legislative
process and the legislature's exercise of its discretionary authority is not subject to judicial
interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line. Congressman
Sergio Osmena, Jr. was suspended by the House of Representatives for serious disorderly behavior
for making a privilege speech imputing "malicious charges" against the President of the
Philippines. Osmena, Jr. invoked the power of review of this Court but the Court once more did not
interfere with Congress' power to discipline its members.
The contours of the political question doctrine have always been tricky. To be sure, the Court did
not always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v.
Cuenco,18 Senate President Jose Avelino, who was deposed and replaced, questioned his
successor's title claiming that the latter had been elected without a quorum. The petition was initially
dismissed on the ground that the selection of Senate President was an internal matter and not subject
to judicial review.19 On reconsideration, however, the Court ruled that it could assume jurisdiction over
the controversy in light of subsequent events justifying intervention among which was the existence of
a quorum.20 Though the petition was ultimately dismissed, the Court declared respondent Cuenco as
the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute involving
the formation and composition of the Senate Electoral Tribunal. It rejected the Solicitor General's
claim that the dispute involved a political question. Instead, it declared that the Senate is not clothed
with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal and the
exercise of its power thereon is subject to constitutional limitations which are mandatory in nature. 22 It
held that under the Constitution, the membership of the Senate Electoral Tribunal was designed to
insure the exercise of judicial impartiality in the disposition of election contests affecting members of
the lawmaking body.23 The Court then nullified the election to the Senate Electoral Tribunal made by

Senators belonging to the party having the largest number of votes of two of their party members but
purporting to act on behalf of the party having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether Congress had
formed the Commission on Appointments in accordance with the Constitution and found that it did
not. It declared that the Commission on Appointments is a creature of the Constitution and its power
does not come from Congress but from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress, acting as
a constituent assembly in proposing amendments to the Constitution violates the Constitution was
held to be a justiciable and not a political issue. In Gonzales, the Court ruled:

"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted
thereto as a political one, declined to pass upon the question whether or not a given
number of votes cast in Congress in favor of a proposed amendment to the Constitutionwhich was being submitted to the people for ratification-satisfied the three-fourths vote
requirement of the fundamental law. The force of this precedent has been weakened,
however, by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v.
Cuenco, and Macias v. Commission on Elections. In the first, we held that the officers and
employees of the Senate Electoral Tribunal are under its supervision and control, not of
that of the Senate President, as claimed by the latter; in the second, this Court proceeded
to determine the number of Senators necessary for a quorum in the Senate; in the third,
we nullified the election, by Senators belonging to the party having the largest number of
votes in said chamber, purporting to act on behalf of the party having the second largest
number of votes therein, of two (2) Senators belonging to the first party, as members, for
the second party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representative districts for
the House of Representatives upon the ground that the apportionment had not been made
as may be possible according to the number of inhabitants of each province. Thus, we
rejected the theory, advanced in these four cases, that the issues therein raised were
political questions the determination of which is beyond judicial review.27
The Court explained that the power to amend the Constitution or to propose amendments thereto
is not included in the general grant of legislative powers to Congress. As a constituent assembly, the
members of Congress derive their authority from the fundamental law and they do not have the final
say on whether their acts are within or beyond constitutional limits. 28 This ruling was reiterated
in Tolentino which held that acts of a constitutional convention called for the purpose of proposing
amendments to the Constitution are at par with acts of Congress acting as a constituent assembly. 29
In sum, this Court brushed aside the political question doctrine and assumed jurisdiction
whenever it found constitutionally-imposed limits on the exercise of powers conferred upon
the Legislature.30
The Court hewed to the same line as regards the exercise of Executive power. Thus, the
respect accorded executive discretion was observed in Severino v. Governor-General,31 where it
was held that the Governor-General, as head of the executive department, could not be compelled by
mandamus to call a special election in the town of Silay for the purpose of electing a municipal
president. Mandamus and injunction could not lie to enforce or restrain a duty which is
discretionary. It was held that when the Legislature conferred upon the Governor-General powers and
duties, it did so for the reason that he was in a better position to know the needs of the country than
any other member of the executive department, and with full confidence that he will perform such
duties as his best judgment dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be compelled
by mandamus to produce certain vouchers showing the various expenditures of the Independence
Commission. Under the principle of separation of powers, it ruled that it was not intended by the
Constitution that one branch of government could encroach upon the field of duty of the other. Each
department has an exclusive field within which it can perform its part within certain discretionary
limits.34 It observed that "the executive and legislative departments of government are frequently
called upon to deal with what are known as political questions, with which the judicial department of
government has no intervention. In all such questions, the courts uniformly refused to intervene for
the purpose of directing or controlling the actions of the other department; such questions being many
times reserved to those departments in the organic law of the state." 35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the Chief
Executive from deporting an obnoxious alien whose continued presence in the Philippines was found
by him to be injurious to the public interest. It noted that sudden and unexpected conditions may

arise, growing out of the presence of untrustworthy aliens, which demand immediate action. The
President's inherent power to deport undesirable aliens is universally denominated as political, and
this power continues to exist for the preservation of the peace and domestic tranquility of the nation.37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of
President's appointing power. It held that the appointing power is the exclusive prerogative of
President, upon which no limitations may be imposed by Congress, except those resulting from
need of securing concurrence of the Commission on Appointments and from the exercise of
limited legislative power to prescribe qualifications to a given appointive office.

the
the
the
the

We now come to the exercise by the President of his powers as Commander-in-Chief vis-avis the political question doctrine. In the 1940's, this Court has held that as Commander-in-Chief of
the Armed Forces, the President has the power to determine whether war, in the legal sense, still
continues or has terminated. It ruled that it is within the province of the political department and not of
the judicial department of government to determine when war is at end. 39
In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 President Quirino
suspended the privilege of the writ of habeas corpus for persons detained or to be detained for crimes
of sedition, insurrection or rebellion. The Court, citing Barcelon, declared that the authority to decide
whether the exigency has arisen requiring the suspension of the privilege belongs to the President
and his decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang
reversed the previous cases and held that the suspension of the privilege of the writ of habeas corpus
was not a political question. According to the Court, the weight of Barcelon was diluted by two
factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's power to call out
the militia which is a much broader power than suspension of the privilege of the writ; and (2) the
privilege was suspended by the American Governor-General whose act, as representative of the
sovereign affecting the freedom of its subjects, could not be equated with that of the President of the
Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of habeas corpus is
neither absolute nor unqualified because the Constitution sets limits on the exercise of
executive discretion on the matter. These limits are: (1) that the privilege must not be suspended
except only in cases of invasion, insurrection or rebellion or imminent danger thereof; and (2) when
the public safety requires it, in any of which events the same may be suspended wherever during
such period the necessity for the suspension shall exist. The extent of the power which may be
inquired into by courts is defined by these limitations.43
On the vital issue of how the Court may inquire into the President's exercise of power, it ruled
that the function of the Court is not to supplant but merely to check the Executive; to ascertain
whether the President has gone beyond the constitutional limits of his jurisdiction, not to exercise the
power vested in him or to determine the wisdom of his act. Judicial inquiry is confined to the question
of whether the President did not act arbitrarily.44 Using this yardstick, the Court found that the
President did not.
The emergency period of the 1970's flooded the Court with cases which raised the political
question defense. The issue divided the Court down the middle. Javellana v. Executive
Secretary45 showed that while a majority of the Court held that the issue of whether or not the 1973
Constitution had been ratified in accordance with the 1935 Constitution was justiciable, a majority
also ruled that the decisive issue of whether the 1973 Constitution had come into force and effect,
with or without constitutional ratification, was a political question. 46
The validity of the declaration of martial law by then President Marcos was next litigated before
the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial law.On whether
the validity of the imposition of martial law was a political or justiciable question, the Court was almost
evenly divided. One-half embraced the political question position and the other half subscribed to the
justiciable position in Lansang. Those adhering to the political question doctrine used different
methods of approach to it.48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The
petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a
Presidential Commitment Order (PCO). Petitioners sought the issuance of a writ of habeas
corpus. The Court found that the PCO had the function of validating a person's detention for any of
the offenses covered in Proclamation No. 2045 which continued in force the suspension of the
privilege of the writ of habeas corpus. It held that the issuance of the PCO by the President was not
subject to judicial inquiry.50 It went further by declaring that there was a need to re-examine Lansang
with a view to reverting to Barcelon and Montenegro. It observed that in times of war or national
emergency, the President must be given absolute control for the very life of the nation and
government is in great peril. The President, it intoned, is answerable only to his conscience, the
people, and God.51

But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must inquire into
every phase and aspect of a person's detention from the moment he was taken into custody up to the
moment the court passes upon the merits of the petition. Only after such a scrutiny can the court
satisfy itself that the due process clause of the Constitution has been met. 53
It is now history that the improper reliance by the Court on the political question doctrine
eroded the people's faith in its capacity to check abuses committed by the then Executive in
the exercise of his commander-in-chief powers, particularly violations against human
rights. The refusal of courts to be pro-active in the exercise of its checking power drove the
people to the streets to resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that drafted the
1987 Constitution. The first was the need to grant this Court the express power to review the
exercise of the powers as commander-in-chief by the President and deny it of any discretion to
decline its exercise. The second was the need to compel the Court to be pro-activeby expanding
its jurisdiction and, thus, reject its laid back stance against acts constituting grave abuse of discretion
on the part of any branch or instrumentality of government. Then Chief Justice Roberto Concepcion,
a member of the Constitutional Commission, worked for the insertion of the second paragraph of
Section 1, Article VIII in the draft Constitution,54 which reads:

"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government."
The language of the provision clearly gives the Court the power to strike down acts amounting to
grave abuse of discretion of both the legislative and executive branches of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our constitutional
history. The provision states:

"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion or rebellion. In case of invasion
or rebellion, when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the armed forces of
the Philippines, may call out the armed forces subject to two conditions: (1) whenever it
becomes necessary; and (2) to prevent or suppress lawless violence, invasion or
rebellion. Undeniably, these conditions lay down the sine qua requirement for the exercise of
the power and the objective sought to be attained by the exercise of the power. They define

the constitutional parameters of the calling out power. Whether or not there is compliance
with these parameters is a justiciable issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission, Commissioner
Bernas opined that the President's exercise of the "calling out power," unlike the suspension of the
privilege of the writ of habeas corpus and the declaration of martial law, is not a justiciable issue but a
political question and therefore not subject to judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the floor of the
Constitutional Convention is valuable, it is not necessarily expressive of the people's intent. 55 The
proceedings of the Convention are less conclusive on the proper construction of the fundamental law
than are legislative proceedings of the proper construction of a statute, for in the latter case it is the
intent of the legislature the courts seek, while in the former, courts seek to arrive at the intent of
the people through the discussions and deliberations of their representatives. 56 The conventional
wisdom is that the Constitution does not derive its force from the convention which framed it, but from
the people who ratified it, the intent to be arrived at is that of the people. 57
It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution
expressly gives the Court the power to review the sufficiency of the factual bases used by the
President in the suspension of the privilege of the writ of habeas corpus and the declaration
of martial law. It does not follow, however, that just because the same provision did not grant
to this Court the power to review the exercise of the calling out power by the President, ergo,
this Court cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power merely means that
the Court cannot decline the exercise of its power because of the political question doctrine
as it did in the past. In fine, the express grant simply stresses the mandatory duty of this
Court to check the exercise of the commander-in-chief powers of the President. It eliminated
the discretion of the Court not to wield its power of review thru the use of the political
question doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to the power to
suspend the privilege of the writ of habeas corpus and the power to declare martial law. Even then, its
exercise cannot be left to the absolute discretion of the Chief Executive as Commander-in-Chief of
the armed forces, as its impact on the rights of our people protected by the Constitution cannot be
downgraded. We cannot hold that acts of the commander-in-chief cannot be reviewed on the ground
that they have lesser impact on the civil and political rights of our people. The exercise of the calling
out power may be "benign" in the case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring Opinion
in Lansang that it would be dangerous and misleading to push the political question doctrine too far,
is apropos. It will not be complementary to the Court if it handcuffs itself to helplessness when a
grievously injured citizen seeks relief from a palpably unwarranted use of presidential or military
power, especially when the question at issue falls in the penumbra between the "political" and the
"justiciable. "58
We should not water down the ruling that deciding whether a matter has been committed by the
Constitution to another branch of government, or whether the action of that branch exceeds whatever
authority has been committed, is a delicate exercise in constitutional interpretation, and is
a responsibility of the Court as ultimate interpreter of the fundamental law.59 When private
justiciable rights are involved in a suit, the Court must not refuse to assume jurisdiction even though
questions of extreme political importance are necessarily involved. 60Every officer under a
constitutional government must act according to law and subject to the controlling power of the
people, acting through the courts, as well as through the executive and legislative. One department is
just as representative of the other, and the judiciary is the department which is charged with the
special duty of determining the limitations which the law places upon all official action. 61 This historic
role of the Court is the foundation stone of a government of laws and not of men.62
I join the Decision in its result.

SEPARATE OPINION
VITUG, J.:

In the equation of judicial power, neither of two extremes - one totalistic and the other bounded is acceptable nor ideal. The 1987 Constitution has introduced its definition of the term "judicial power"
to be that which -

x x x includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.1
It is not meant that the Supreme Court must be deemed vested with the awesome power of
overseeing the entire bureaucracy, let alone of institutionalizing judicial absolutism, under its
mandate. But while this Court does not wield unlimited authority to strike down an act of its two coequal branches of government, it must not wither under technical guise on its constitutionally
ordained task to intervene, and to nullify if need be, any such act as and when it is attended by grave
abuse of discretion amounting to lack or excess of jurisdiction. The proscription then against an
interposition by the Court into purely political questions, heretofore known, no longer holds within that
context.
Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidated in his concurring opinion:

"x x x [I] concur with the majority that this Court has jurisdiction over cases like the present
x x x so as to establish in this country the judicial supremacy, with the Supreme Court as
the final arbiter, to see that no one branch or agency of the government transcends the
Constitution, not only in justiceable but political questions as well."3
It is here when the Court must have to depart from the broad principle of separation of powers that
disallows an intrusion by it in respect to the purely political decisions of its independent and
coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as being, and
confined to, a capricious and whimsical or despotic exercise of judgment amounting to lack or excess
of jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants in the duel of views,
the act of the President in simply calling on the Armed Forces of the Philippines, an executive
prerogative, to assist the Philippine National Police in "joint visibility patrols" in the metropolis
does not, I believe, constitute grave abuse of discretion that would now warrant an exercise by the
Supreme Court of its extraordinary power as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.
MENDOZA, J., concurring and dissenting:

I concur in the opinion of the Court insofar as it holds petitioner to be without standing to question
the validity of LOI 02/2000 which mandates the Philippine Marines to conduct "joint visibility" patrols
with the police in Metro Manila. But I dissent insofar as the opinion dismisses the petition in this case
on other grounds. I submit that judgment on the substantive constitutional issues raised by petitioner
must await an actual case involving real parties with "injuries" to show as a result of the operation of
the challenged executive action. While as an organization for the advancement of the rule of law
petitioner has an interest in upholding the Constitution, its interest is indistinguishable from the
interest of the rest of the citizenry and falls short of that which is necessary to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality of governmental
action requires that (1) the petitioner must have suffered an "injury in fact" of an actual or imminent
nature; (2) there must be a causal connection between the injury and the conduct complained of; and
(3) the injury is likely to be redressed by a favorable action by this Court. 1The "injury in fact" test
requires more than injury to a cognizable interest. It requires that the party seeking review be himself
among those injured.2
My insistence on compliance with the standing requirement is grounded in the conviction that only
a party injured by the operation of the governmental action challenged is in the best position to aid the
Court in determining the precise nature of the problem presented. Many a time we have adverted to
the power of judicial review as an awesome power not to be exercised save in the most exigent
situation. For, indeed, sound judgment on momentous constitutional questions is not likely to be
reached unless it is the result of a clash of adversary arguments which only parties with direct and
specific interest in the outcome of the controversy can make. This is true not only when we strike
down a law or official action but also when we uphold it.
In this case, because of the absence of parties with real and substantial interest to protect, we do
not have evidence on the effect of military presence in malls and commercial centers,i.e., whether
such presence is coercive or benign. We do not know whether the presence of so many marines and
policemen scares shoppers, tourists, and peaceful civilians, or whether it is reassuring to them. To be
sure, the deployment of troops to such places is not like parading them at the Luneta on
Independence Day. Neither is it, however, like calling them out because of actual fighting or the
outbreak of violence.

We need to have evidence on these questions because, under the Constitution, the President's
power to call out the armed forces in order to suppress lawless violence, invasion or rebellion is
subject to the limitation that the exercise of this power is required in the interest of public safety.3
Indeed, whether it is the calling out of the armed forces alone in order to suppress lawless
violence, invasion or rebellion or also the suspension of the privilege of the writ of habeas corpus or
the proclamation of martial law (in case of invasion or rebellion), the exercise of the President's
powers as commander-in-chief, requires proof - not mere assertion.4 As has been pointed out,
"Standing is not `an ingenious academic exercise in the conceivable' . . . but requires . . . a factual
showing of perceptible harm."5
Because of the absence of such record evidence, we are left to guess or even speculate on these
questions. Thus, at one point, the majority opinion says that what is involved here is not even the
calling out of the armed forces but only the use of marines for law enforcement. (p. 13) At another
point, however, the majority opinion somersaults and says that because of bombings perpetrated by
lawless elements, the deployment of troops in shopping centers and public utilities is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground that the calling out of
the military does not violate the Constitution, just as we are likely to do so if we grant the petition and
invalidate the executive issuance in question. For indeed, the lack of a real, earnest and vital
controversy can only impoverish the judicial process. That is why, as Justice Laurel emphasized in
the Angara case, "this power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented."6
We are told, however, that the issues raised in this case are of "paramount interest" to the
nation. It is precisely because the issues raised are of paramount importance that we should all the
more forego ruling on the constitutional issues raised by petitioner and limit the dismissal of this
petition on the ground of lack of standing of petitioner. A Fabian policy of leaving well enough alone is
a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished by the majority
opinion on the constitutional questions raised, I am constrained to limit my concurrence to the
dismissal of this suit on the ground of lack of standing of petitioner and the consequent lack of an
actual case or controversy.

Sec. 1, Article VIII, 1987 Constitution.

Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.
3
Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909].
4
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 859 [1996].
5
5 Phil. 87 [1905].
6
Id. at 97.
7
Id. at 104.
8
See Cruz, Philippine Political law, p. 87 [1998].
9
Id. at 113-114.
10
Id. at 106-107.
11
46 Phil. 83 [1924].
12
Id. at 97.
13
77 Phil. 192 [1946].
14
78 Phil. 1 [1947].
15
Id. at 4-5. The court also adopted the enrolled bill theory which, like findings under the political question doctrine, imports absolute
verity on the courts-at 12.
16
97 Phil. 358 [1955].
17
109 Phil. 863 [1960].
18
83 Phil. 17 [1949].
19
Id. at 21-22.
20
Id. at 68-69.
21
103 Phil. 1051 [1957].
22
Id. at 1068.
23
Id. at 1083.
24
5 SCRA 1 [1962].
25
21 SCRA 774 [1967].
26
41 SCRA 702 [1971].
27
Id. at 785-786.
28
Id. at 787.
29
41 SCRA at 713.
30
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 861 [1996].
31
16 Phil. 366 [1910].
32
Id. at 401.
33
45 Phil. 612 [1924].
34
Id. At 630.
35
Id. at 637-638.
36
16 Phil. 534 [1910].
2

37

Id. at 568-569, 576.

94 Phil. 903 [1954].
39
Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil. 50 [1945].
40
91 Phil. 882 [1952].
41
Id. at 887.
42
42 SCRA 448 [1971].
43
Id. at 474.
44
Id. at 480-481.
45
50 SCRA 30 [1973].
46
Id. at 138, 140-141.
47
59 SCRA 183 [1973].
48
Ibid.
49
121 SCRA 472 [1983].
50
Id. at 490-491.
51
Id. at 500-501.
52
121 SCRA 538 [1983].
53
Id. at 563.
54
See Concepcions sponsorship speech, I Record 434-435; see also Bernas, the Constitution of the Republic of the Philippines A
Commentary, p. 863 [1996].
55
J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426 [1970].
56
Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Construction, 4th ed., p. 454 [1998].
57
Black, Handbook on the Construction and Interpretation of the laws, 2d ed., p. 39 [1911].
58
SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-in-Chief, pp. 16-17 [1951].
59
Baker v. Carr, 7 L Ed 2d at 682.
60
Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336 [1929].
61
Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW 408 [1909].
62
Id.
1
Section 1, Article VIII of the Constitution.
2
83 Phil. 17.
3
Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., 298 SCRA 756.
1
Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord, Telecommunication and Broadcast Attorneys of the Philippines v.
COMELEC, 289 SCRA 343 (1998).
2
Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).
3
See CONST., ART. VII, 18.
4
See Lansang v. Garcia, 42 SCRA 448 (1971).
5
Lujan v. Defenders of Wildlife, supra.
6
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)
38

[1]

Rollo, pp. 17-21.

[2]

As of 19 May 2000, the Marines have been recalled from their areas of deployment to join the military operations in Mindanao, and
replaced by Air Force personnel who took over their functions in the joint visibility patrols. The Air Force personnel, just like the
Marines, were ordered to assist the PNP, also by virtue of LOI 2/2000. Since both the Marines and Air Force belong to the Armed
Forces, the controversy has not been rendered moot and academic by the replacement of the former by the latter. The validity of the
deployment of the armed forces in the joint visibility patrols thus remain an issue.
[3]

Rollo, pp. 75-76.

[4]

Id., at 75.

[5]

Id.

[6]

Id.

[7]

Rollo, p. 75.

[8]

Id., at 17-18.

[9]

Id.

[10]

Rollo, p. 7.

[11]

Id., at 24.

[12]

Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994) citing Luz Farms v. Secretary of the Department of
Agrarian Reform, 192 SCRA 51 (1990); Dumlao v. Commission on Elections, 95 SCRA 392 (1980); and, People v. Vera, 65 Phil. 56
(1937).
[13]

Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993).

[14]

Ibid., citing House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA 703 (1987).

[15]

Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).

[16]

Joya v. Presidential Commission on Good Government, supra note 13, at 579 citing Dumlao v. Commission on Elections, 95
SCRA 392 (1980).
[17]

Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997) citing Garcia v. Executive Secretary, 211 SCRA 219
(1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991); and, Araneta v.Dinglasan, 84 Phil. 368
(1949).
[18]

Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on Good Government, 225 SCRA 568
(1993); Daza v. Singson, 180 SCRA 496 (1989). As formulated by Mr. Justice (now Chief Justice) Hilario G. Davide, Jr.
in Kilosbayan, Inc. vs. Guingona, Jr., [232 SCRA 110 (1994)] "(a) party's standing before this Court is a procedural technicality which

it may, in the exercise of its discretion, set aside in view of the importance of the issues raised," favorably citing our ruling in the
Emergency Powers Cases [L-2044 (Araneta v. Dinglasan); L-2756 (Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de Filipinas);
and L-3056 (Barredo v. COMELEC), 84 Phil. 368 (1940)] where this Court brushed aside this technicality because "the transcendental
importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technical
rules of procedure." An inflexible rule on locus standi would result in what Mr. Justice Florentino P. Feliciano aptly described as a
doctrinal ball and chain xxx clamped on our own limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995)].
[19]

Rollo, p. 12

[20]

Article II, Sections 4 and 5 of the Constitution provide:

Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or
civil service.
Sec. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of democracy.
[21]

177 SCRA 668, 694 (1989).

[22]

WESTS LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).

[23]

103 Phil. 1051 (1957).

[24]

369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).

[25]

Article VIII, Sec. 1 of the 1987 CONSTITUTION.

[26]

Santiago v. Guingona, Jr., 298 SCRA 756 (1998).

[27]

Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).

[28]

Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA 496 (1988); Coseteng v. Mitra, 187 SCRA 377 (1990).

[29]

Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers Bank v. NLRC, 165 SCRA 284 (1988); Litton
Mills v. Galleon Trader, Inc., 163 SCRA 494 (1988).
[30]

Ledesma v. Court of Appeals, 278 SCRA 659 (1997).

[31]

Bondoc v. Pineda, 201 SCRA 792 (1991).

[32]

Drilon v. Lim, 235 SCRA 135 (1994).

[33]

Sarmiento v. Mison, 156 SCRA 549 (1987).

[34]

II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412 (1986).

[35]

Rollo, p. 75.

[36]

Section 3, provides:

Civilian authority, is at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and
the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
[37]

No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:

a. RD, NCRPO is designated as Task Force Commander TULUNGAN.

[38]

No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:

b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police patrol/visibility procedures.
[39]

No. 8 of the LOI provides: TASKS:

k. POLICE DISTRICTS/STATIONS
-Provide direction and manage the deployment of all Philippine Marines personnel deployed in your AOR for police visibility
operations.
-Conduct briefing/orientation to Philippine Marines personnel on the dos and donts of police visibility patrols.
-Provide transportation to Philippine Marines from districts headquarters to different stations and PCPs.
-Perform other tasks as directed.
[40]

No. 8 of the LOI states: TASKS:

c. RLD/R4
-Coordinate with the Directorate for Logistics for the issuance of the following equipments (sic) to be utilize (sic) by the Philippine
Marines personnel: 500 pieces Probaton, 500 whistle (sic), 500 pieces brazzard blazoned.
-Coordinate with the Directorate for Logistics for the issuance of the following for use of PNP personnel involved in the
visibility patrol operations:
1,000 sets of PNP GOA Uniform
500 each raincoats
500 each Probaton
500 each Whistle
500 each handcuffs
500 each Combat Boots

500 each low cut shoes

-Provide transportation to the Philippine Marines personnel in coordination with LSS, NHQ PNP.
-Provide additional gas allocation to Philippine Marines members of the Inspection Teams.
- Perform other tasks as directed.40
[41]

Sec. 5(4), Article XVI, provides:

No member of the Armed Forces in the active service shall, at any time, be appointed in the government including government-owned
and controlled corporations or any of their subsidiaries.
[42]

CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999), which is entitled In Re Guidelines for the
Designation of Registration Centers and the Accountable Officers for the Polaroid Instant Cameras for Purposes of the Registration of
Voters on 8-9 May 1999 in the Autonomous Region in Muslim Mindanao; Comelec Resolution No. 3059 (1999), which is entitled, In
the Matter of Deputizing the Armed Forces of the Philippines and the Three (3) AFP Components, Namely: Philippine Army,
Philippine Navy and Philippine Air Force, for the Purpose of Ensuring Free, Orderly, Honest and Peaceful Precinct Mapping,
Registration of Voters and the Holding of the September 13, 1999 Elections in the Autonomous Region in Muslim Mindanao
(ARMM); Republic Act No. 7166 (1991), Section 33, which is entitled An Act Providing for Synchronized National and Local
Elections and for Electoral Reforms, Authorizing Appropriations therefor, and for other Purposes; Administrative Code of 1987, Book
V, Title I, Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas Pambansa Blg. 881, Article VI, Sections 52 (b) and 57 (3) (1985), which
is also known as Omnibus Election Code.
[43]

Republic Act No. 95 (1947), Section 5, which is entitled An Act to Incorporate the Philippine National Red Cross
Section; Republic Act No. 855 (1953), Section 1, which is entitled An Act to Amend Section V of Republic Act Numbered NinetyFive, entitled An Act to Incorporate the Philippine National Red Cross.
[44]

Republic Act No. 7077 (1991), Article III, Section 7, which is entitled An Act Providing for the Development, Administration,
Organization, Training, Maintenance and Utilization of the Citizen Armed Forces of the Armed Forces of the Philippines and for other
Purposes.
[45]

Republic Act No. 6847 (1990), Section 7, which is entitled An Act Creating and Establishing The Philippine Sports Commission,
Defining its Powers, Functions and Responsibilities, Appropriating Funds therefor, and for other Purposes.
[46]
Republic Act No. 8492 (1998), Section 20, which is entitled An Act Establishing a National Museum System, Providing for its
Permanent Home and for other Purposes.
[47]

Republic Act No. 8550 (1998), Section 124, which is entitled An Act Providing for the Development, Management and
Conservation of the Fisheries and Aquatic Resources, Integrating All Laws Pertinent Thereto, and for other Purposes; Memorandum
Circular No. 150 (1996), which is entitled Amending Memorandum Circular No. 128, dated July 20, 1995 by Reorganizing the
Presidential Task Force on Tubbataha Reef National Marine Park; Executive Order No. 544 (1979), Letter I, which is entitled
Creating a Presidential Committee for the Conservation of the Tamaraw, Defining its Powers and for other Purposes.
[48]

Executive Order No. 129-A (1987) Section 5 (m), which is entitled Modifying Executive Order No. 129 Reorganizing and
Strengthening the Department of Agrarian Reform and for other Purposes.
[49]

Republic Act No. 1937 (1957), Section 2003, which is entitled An Act to Revised and Codify the Tariff and Customs Laws of the
Philippines; Executive Order No. 45 (1998), which is entitled Creating a Presidential Anti-Smuggling Task Force to Investigate and
Prosecute Crimes Involving Large-Scale Smuggling and other Frauds upon Customs and Providing Measures to Expedite Seizure
Proceedings;
[50]

These cases involved joint military and civilian law enforcement operations: People v. Escalante, G.R No. 106633, December 1,
1994; People v. Bernardo, G.R. No. 97393, March 17, 1993; People v. De la Cruz, G.R. No. 83260, April 18, 1990; Guanzon v. de
Villa, 181 SCRA 623, 631 (1990). (This case recognizes the complementary roles of the PNP and the military in conducting anticrime campaigns, provided that the peoples rights are not violated in these words: If the military and the police must conduct
concerted campaigns to flush out and catch criminal elements, such drives must be consistent with the constitutional and statutory
rights of all people affected by such actions. The creation of the Task Force also finds support in Valmonte v. de Villa, 185 SCRA 665
(1990). Executive Order No. 62 (1999), which is entitled Creating the Philippine Center on Transnational Crime to Formulate and
Implement a Concerted Program of Action of All Law Enforcement, Intelligence and other Agencies for the Prevention and Control of
Transnational Crime; Executive Order No. 8 (1998), which is entitled Creating a Presidential Anti-Organized Crime Commission and
a Presidential Anti-Organized Crime Task Force, to Investigate and Prosecute Criminal Elements in the Country; Executive Order No.
280 (1995), which is entitled Creating a Presidential Task Force of Intelligence and Counter-Intelligence to Identify, Arrest and Cause
the Investigation and Prosecution of Military and other Law Enforcement Personnel on their Former Members and Their Cohorts
Involved in Criminal Activities.
[51]

Memorandum Circular No. 141 (1996), which is entitled Enjoining Government Agencies Concerned to Extend Optimum Support
and Assistance to the Professional Regulation Commission in its Conduct of Licensure Examinations.
[52]

Memorandum Circular No. 32 (1999), which is entitled Directing the Government Agencies Concerned to Extend Maximum
Support and Assistance to the National Educational Testing and Research Center (NETRC) of the Department of Education, Culture
and Sports (DECS) in the Conduct of Tests of National Coverage.
[53]

Executive Order No. 61 (1999), which is entitled Creating the National Drug Law Enforcement and Prevention Coordinating
Center to Orchestrate Efforts of national Government Agencies, Local Government Units, and Non-Government Organizations for a
More Effective Anti-Drug Campaign.
[54]

Republic Act No. 4089 (1964), which is entitled An Act Making the City Health Officer of Bacolod City the Local Civil Registrar,
Amending for the Purpose Section Forty-Three of the Charter of said City;" Republic Act No. 537 (1950), which is entitled "An Act
to Revise the Charter of Quezon City; Commonwealth Act No. 592 (1940), which is entitled An Act to Create the City of Dansalan;
Commonwealth Act No. 509 (1939), which is entitled An Act to Create Quezon City; Commonwealth Act No. 326 (1938), which is
entitled An Act Creating the City of Bacolod; Commonwealth Act No. 39 (1936), which is entitled An Act Creating the City of
Zamboanga; Commonwealth Act No. 51 (1936), which is entitled An Act Creating the City of Davao.
[55]

Republic Act No. 36 (1946), which is entitled Census Act of Nineteen Hundred and Forty-Six.

[56]

Republic Act No. 776 (1952), Section 5, which is entitled An Act to Reorganize the Civil Aeronautics Board and the Civil
Aeronautics Administration, To Provide for the Regulation of Civil Aeronautics in the Philippines and Authorizing the Appropriation
of Funds Therefor.
[57]

Republic Act No. 6613 (1972), Section 4, which is entitled An Act Declaring a Policy of the State to Adopt Modern Scientific
Methods to Moderate Typhoons and Prevent Destruction by Floods, Rains and Droughts, Creating a Council on Typhoons and
Prevent Destruction by Flood, Rains and Droughts, Creating a Council on Typhoon Moderation and Flood Control Research and
Development, Providing for its Powers and Functions and Appropriating Funds Therefor.
[58]

Local Government Code of 1991, Book I, Title Seven, Section 116.

[59]

This theory on gloss of executive power was advanced by Justice Frankfurter in his concurring opinion in Youngstown Sheet and
Tube v. Sawyer, 343 US 579, 610-611 (1952).
[60]

Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).

[61]

18 U.S.C.A 1385 (1878).

[62]

Ibid.

[63]

Bissonette v. Haig, supra note 60, at 1390.

[64]

A power regulatory in nature is one which controls or directs. It is proscriptive if it prohibits or condemns and compulsory if it
exerts some coercive force. See US v. Yunis, 681 F.Supp. 891 (D.D.C., 1988). See also FOURTH AMENDMENT AND POSSE
COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT IN CIVIL LAW ENFORCEMENT,
[65]

L.O.I. 02/2000, TULUNGAN, Rollo, pp. 17-22.

[66]

No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:

a. The PNP NCPRO thru Police Districts will continue to deploy uniformed PNP personnel dedicated for police visibility patrols in
tandem with the Philippine Marines.
b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police patrol/visibility
procedures.66
[67]

Supra note 34.

[68]

Supra note 32.

[69]

No. 9 of the LOI states:

d. In case of apprehensions, arrested person/s shall be brought to the nearest police stations/PCPs.
[70]

Supra note 35.

[71]

Rollo, p. 70.

G.R. No. L-45892

July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TRANQUILINO LAGMAN, defendant-appellant.
----------------------------G.R. No. L-45893

July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PRIMITIVO DE SOSA, defendant-appellant.
Severino P. Izon for appellants.
Office of the Solicitor-General Tuason for appellee.
AVANCEA, J.:
In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de Sosa are charged
with a violation of section 60 of Commonwealth Act No. 1, known as the National Defense Law. It is alleged that
these two appellants, being Filipinos and having reached the age of twenty years in 1936, willfully and unlawfully
refused to register in the military service between the 1st and 7th of April of said year, notwithstanding the fact that
they had been required to do so. The evidence shows that these two appellants were duly notified by the
corresponding authorities to appear before the Acceptance Board in order to register for military service in
accordance with law, and that the said appellants, in spite of these notices, had not registered up to the date of the
filing of the information.
The appellants do not deny these facts, but they allege in defense that they have not registered in the military
service because Primitivo de Sosa is fatherless and has a mother and a brother eight years old to support, and
Tranquilino Lagman also has a father to support, has no military learnings, and does not wish to kill or be killed.
Each of these appellants was sentenced by the Court of First Instance to one month and one day of imprisonment,
with the costs.
In this instance, the validity of the National Defense Law, under which the accused were sentenced, is impugned on
the ground that it is unconstitutional. Section 2, Article II of the Constitution of the Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this duty all citizens
may be required by law to render personal military or civil service.
The National Defense Law, in so far as it establishes compulsory military service, does not go against this
constitutional provision but is, on the contrary, in faithful compliance therewith. The duty of the Government to
defend the State cannot be performed except through an army. To leave the organization of an army to the will of
the citizens would be to make this duty of the Government excusable should there be no sufficient men who
volunteer to enlist therein.
1vvphl.nt

In the United States the courts have held in a series of decisions that the compulsory military service adopted by
reason of the civil war and the world war does not violate the Constitution, because the power to establish it is
derived from that granted to Congress to declare war and to organize and maintain an army. This is so because the
right of the Government to require compulsory military service is a consequence of its duty to defend the State and
is reciprocal with its duty to defend the life, liberty, and property of the citizen. In the case of Jacobson vs.
Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was said that, without violating the Constitution, a person
may be compelled by force, if need be, against his will, against his pecuniary interests, and even against his
religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of
being shot down in its defense. In the case of United States vs. Olson (253 Fed., 233), it was also said that this is
not deprivation of property without due process of law, because, in its just sense, there is no right of property to an
office or employment.
The circumstance that these decisions refer to laws enacted by reason on the actual existence of war does not
make our case any different, inasmuch as, in the last analysis, what justifies compulsory military service is the
defense of the State, whether actual or whether in preparation to make it more effective, in case of need. The
circumstance that the appellants have dependent families to support does not excuse them from their duty to
present themselves before the Acceptance Board because, if such circumstance exists, they can ask for determent
in complying with their duty and, at all events, they can obtain the proper pecuniary allowance to attend to these
family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1).
The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So ordered.
Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

G.R. No. L-45459

March 13, 1937

GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.
Vicente Sotto for petitioner.
Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance
from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage
stamps commemorative of the Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage
stamps commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress,
organized by the Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty,
requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the
Philippines. In spite of the protest of the petitioner's attorney, the respondent publicly announced having sent to the
United States the designs of the postage stamps for printing as follows:
"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown,
cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos."
The said stamps were actually issued and sold though the greater part thereof, to this day, remains unsold. The
further sale of the stamps is sought to be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case,
although he admits that the writ may properly restrain ministerial functions. While, generally, prohibition as an
extraordinary legal writ will not issue to restrain or control the performance of other than judicial or quasi-judicial
functions (50 C. J., 6580, its issuance and enforcement are regulated by statute and in this jurisdiction may issue to
. . . inferior tribunals, corporations, boards, or persons, whether excercising functions judicial or ministerial, which
are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226,
Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are
undoubtedly comprehensive and include the challenged act of the respondent Director of Posts in the present case,
which act because alleged to be violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction."
The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or
tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the
jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in
excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of
justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of
actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing
and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. It is alleged that
this action of the respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of
the Philippines, which provides as follows:
No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, secretarian, institution, or system of religion, or for the
use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such,
except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal
institution, orphanage, or leprosarium.
The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the
necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our
history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both,
for ocassions might arise when the estate will use the church, and the church the state, as a weapon in the
furtherance of their recognized this principle of separation of church and state in the early stages of our
constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December
10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine
Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines
as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both
religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to
support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of
religious freedom, with its inherent limitations and recognized implications. It should be stated that what is
guaranteed by our Constitution is religious liberty, not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is
not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality,
its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve
and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity
the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested reliance

upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects
and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious
purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended
thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher,
minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution,
orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction
in the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation
to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays and
made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is conclusive to
beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against
religious worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133, Revised
Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the
provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows:
No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE
SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE
APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW
DESIGNS, AND FOR OTHER PURPOSES.
Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and
by the authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any
funds in the Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with
new designs, and other expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby
authorized to dispose of the whole or any portion of the amount herein appropriated in the manner indicated and as
often as may be deemed advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of
postage stamps with new designs and other expenses incident thereto, and authorizes the Director of Posts, with
the approval of the Secretary of Public Works and Communications, to dispose of the amount appropriated in the
manner indicated and "as often as may be deemed advantageous to the Government". The printing and issuance of
the postage stamps in question appears to have been approved by authority of the President of the Philippines in a
letter dated September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent alleges
that the Government of the Philippines would suffer losses if the writ prayed for is granted. He estimates the
revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still
remain to be sold stamps worth P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary
power to determine when the issuance of special postage stamps would be "advantageous to the Government." Of
course, the phrase "advantageous to the Government" does not authorize the violation of the Constitution. It does
not authorize the appropriation, use or application of public money or property for the use, benefit or support of a
particular sect or church. In the present case, however, the issuance of the postage stamps in question by the
Director of Posts and the Secretary of Public Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money
derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of
Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and
selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned
merely, took advantage of an event considered of international importance "to give publicity to the Philippines and
its people" (Letter of the Undersecretary of Public Works and Communications to the President of the Philippines,
June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps as actually designed and printed
(Exhibit 2), instead of showing a Catholic Church chalice as originally planned, contains a map of the Philippines
and the location of the City of Manila, and an inscription as follows: "Seat XXXIII International Eucharistic Congress,
Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the Philippines,
as the seat of that congress. It is obvious that while the issuance and sale of the stamps in question may be said to
be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman
Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government
should not be embarassed in its activities simply because of incidental results, more or less religious in character, if
the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose
should not be frustrated by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts,
175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete
separation of church and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in

the Philippines, once the scene of religious intolerance and prescription, care should be taken that at this stage of
our political development nothing is done by the Government or its officials that may lead to the belief that the
Government is taking sides or favoring a particular religious sect or institution. But, upon very serious reflection,
examination of Act No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that
there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with the
approval of the Secretary of Public Works and Communications, discretion to misuse postage stamps with new
designs "as often as may be deemed advantageous to the Government." Even if we were to assume that these
officials made use of a poor judgment in issuing and selling the postage stamps in question still, the case of the
petitioner would fail to take in weight. Between the exercise of a poor judgment and the unconstitutionality of the
step taken, a gap exists which is yet to be filled to justify the court in setting aside the official act assailed as coming
within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered.

[G.R. No. 47800. December 2, 1940.]

MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.
Maximo Calalang in his own behalf.
Solicitor General Ozaeta and Assistant Solicitor General Amparo for
respondents Williams, Fragante and Bayan
City Fiscal Mabanag for the other respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648;
DELEGATION OF LEGISLATIVE POWER; AUTHORITY OF DIRECTOR OF PUBLIC WORKS
AND SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS TO PROMULGATE RULES
AND REGULATIONS. The provisions of section 1 of Commonwealth Act No. 648 do not
confer legislative power upon the Director of Public Works and the Secretary of Public
Works and Communications. The authority therein conferred upon them and under
which they promulgated the rules and regulations now complained of is not to determine
what public policy demands but merely to carry out the legislative policy laid down by
the National Assembly in said Act, to wit, "to promote safe transit upon, and avoid
obstructions on, roads and streets designated as national roads by acts of the National
Assembly or by executive orders of the President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the condition of the road or the
traffic thereon makes such action necessary or advisable in the public convenience and
interest." The delegated power, if at all, therefore, is not the determination of what the
law shall be, but merely the ascertainment of the facts and circumstances upon which
the application of said law is to be predicated. To promulgate rules and regulations on
the use of national roads and to determine when and how long a national road should be
closed to traffic, in view of the condition of the road or the traffic thereon and the
requirements of public convenience and interest, is an administrative function which
cannot be directly discharged by the National Assembly. It must depend on the
discretion of some other government official to whom is confided the duty of
determining whether the proper occasion exists for executing the law. But it cannot be
said that the exercise of such discretion is the making of the law.
2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY.
Commonwealth Act No. 548 was passed by the National Assembly in the exercise of the
paramount police power of the state. Said Act, by virtue of which the rules and
regulations complained of were promulgated, aims to promote safe transit upon and
avoid obstructions on national roads, in the interest and convenience of the public. In
enacting said law, therefore, the National Assembly was prompted by considerations of
public convenience and welfare. It was inspired by a desire to relieve congestion of
traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies at
the bottom of the enactment of said law, and the state in order to promote the general
welfare may interfere with personal liberty, with property, and with business and
occupations. Persons and property may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort, health, and prosperity of the state (U.S.
v. Gomer Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights of
the individual are subordinated. Liberty is a blessing without which life is a misery, but
liberty should not be made to prevail over authority because then society will fall into
anarchy. Neither should authority be made to prevail over liberty because then the
individual will fall into slavery. The citizen should achieve the required balance of liberty
and authority in his mind through education and, personal discipline, so that there may
be established the resultant equilibrium, which means peace and order and happiness
for all. The moment greater authority is conferred upon the government, logically so
much is withdrawn from the residuum of liberty which resides in the people. The
paradox lies in the fact that the apparent curtailment of liberty is precisely the very
means of insuring its preservation.
3. ID.; ID.; SOCIAL JUSTICE. Social justice is "neither communism, nor despotism,
nor atomism, nor anarchy," but the humanization of laws and the equalization of social
and economic forces by the State so that justice in its rational and objectively secular

conception may at least be approximated. Social justice means the promotion of the
welfare of all the people, the adoption by the Government of measures calculated to
insure economic stability of all the competent elements of society, through the
maintenance of a proper economic and social equilibrium in the interrelations of the
members of the community, constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of powers underlying the
existence of all governments on the time-honored principle of salus populi est suprema
lex. Social justice, therefore, must be founded on the recognition of the necessity of
interdependence among divers and diverse units of a society and of the protection that
should be equally and evenly extended to all groups as a combined force in our social
and economic life, consistent with the fundamental and paramount objective of the state
of promoting the health, comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number."
DECISION
LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila,
brought before this court this petition for a writ of prohibition against the respondents,
A. D. Williams, as Chairman of the National Traffic Commission; Vicente Fragante, as
Director of Public Works; Sergio Bayan, as Acting Secretary of Public Works and
Communications; Eulogio Rodriguez, as Mayor of the City of Manila; and Juan
Dominguez, as Acting Chief of Police of Manila.
It is alleged in the petition that the National Traffic Commission, in its resolution of July
17, 1940, resolved to recommend to the Director of Public Works and to the Secretary of
Public Works and Communications that animal-drawn vehicles be prohibited from
passing along Rosario Street extending from Plaza Calderon de la Barca to Dasmarias
Street, from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and along Rizal
Avenue extending from the railroad crossing at Antipolo Street to Echague Street, from
7 a.m. to 11 p.m., from a period of one year from the date of the opening of the
Colgante Bridge to traffic; that the Chairman of the National Traffic Commission, on July
18, 1940 recommended to the Director of Public Works the adoption of the measure
proposed in the resolution aforementioned, in pursuance of the provisions of
Commonwealth Act No. 548 which authorizes said Director of Public Works, with the
approval of the Secretary of Public Works and Communications, to promulgate rules and
regulations to regulate and control the use of and traffic on national roads; that on
August 2, 1940, the Director of Public Works, in his first indorsement to the Secretary of
Public Works and Communications, recommended to the latter the approval of the
recommendation made by the Chairman of the National Traffic Commission as aforesaid,
with the modification that the closing of Rizal Avenue to traffic to animal-drawn vehicles
be limited to the portion thereof extending from the railroad crossing at Antipolo Street
to Azcarraga Street; that on August 10, 1940, the Secretary of Public Works and
Communications, in his second indorsement addressed to the Director of Public Works,
approved the recommendation of the latter that Rosario Street and Rizal Avenue be
closed to traffic of animal-drawn vehicles, between the points and during the hours as
above indicated, for a period of one year from the date of the opening of the Colgante
Bridge to traffic; that the Mayor of Manila and the Acting Chief of Police of Manila have
enforced and caused to be enforced the rules and regulations thus adopted; that as a
consequence of such enforcement, all animal-drawn vehicles are not allowed to pass and
pick up passengers in the places above-mentioned to the detriment not only of their
owners but of the riding public as well.
It is contended by the petitioner that Commonwealth Act No. 548 by which the Director
of Public Works, with the approval of the Secretary of Public Works and
Communications, is authorized to promulgate rules and regulations for the regulation
and control of the use of and traffic on national roads and streets is unconstitutional
because it constitutes an undue delegation of legislative power. This contention is
untenable. As was observed by this court in Rubi v. Provincial Board of Mindoro (39 Phil,
660, 700), "The rule has nowhere been better stated than in the early Ohio case decided

by Judge Ranney, and since followed in a multitude of cases, namely: The true
distinction therefore is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The
first cannot be done; to the latter no valid objection can be made. (Cincinnati, W. & Z.
R. Co. v. Commrs. Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief Justice
Marshall in Wayman v. Southard (10 Wheat., 1) may be committed by the Legislature to
an executive department or official. The Legislature may make decisions of executive
departments or subordinate officials thereof, to whom it has committed the execution of
certain acts, final on questions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The growing
tendency in the decisions is to give prominence to the necessity of the case."cralaw
virtua1aw library
Section 1 of Commonwealth Act No. 548 reads as follows:jgc:chanrobles.com.ph
"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets
designated as national roads by acts of the National Assembly or by executive orders of
the President of the Philippines, the Director of Public Works, with the approval of the
Secretary of Public Works and Communications, shall promulgate the necessary rules
and regulations to regulate and control the use of and traffic on such roads and streets.
Such rules and regulations, with the approval of the President, may contain provisions
controlling or regulating the construction of buildings or other structures within a
reasonable distance from along the national roads. Such roads may be temporarily
closed to any or all classes of traffic by the Director of Public Works and his duly
authorized representatives whenever the condition of the road or the traffic thereon
makes such action necessary or advisable in the public convenience and interest, or for
a specified period, with the approval of the Secretary of Public Works and
Communications."cralaw virtua1aw library
The above provisions of law do not confer legislative power upon the Director of Public
Works and the Secretary of Public Works and Communications. The authority therein
conferred upon them and under which they promulgated the rules and regulations now
complained of is not to determine what public policy demands but merely to carry out
the legislative policy laid down by the National Assembly in said Act, to wit, "to promote
safe transit upon and avoid obstructions on, roads and streets designated as national
roads by acts of the National Assembly or by executive orders of the President of the
Philippines" and to close them temporarily to any or all classes of traffic "whenever the
condition of the road or the traffic makes such action necessary or advisable in the
public convenience and interest." The delegated power, if at all, therefore, is not the
determination of what the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be predicated. To promulgate
rules and regulations on the use of national roads and to determine when and how long
a national road should be closed to traffic, in view of the condition of the road or the
traffic thereon and the requirements of public convenience and interest, is an
administrative function which cannot be directly discharged by the National Assembly. It
must depend on the discretion of some other government official to whom is confided
the duty of determining whether the proper occasion exists for executing the law. But it
cannot be said that the exercise of such discretion is the making of the law. As was said
in Lockes Appeal (72 Pa. 491): "To assert that a law is less than a law, because it is
made to depend on a future event or act, is to rob the Legislature of the power to act
wisely for the public welfare whenever a law is passed relating to a state of affairs not
yet developed, or to things future and impossible to fully know." The proper distinction
the court said was this: "The Legislature cannot delegate its power to make the law; but
it can make a law to delegate a power to determine some fact or state of things upon
which the law makes, or intends to make, its own action depend. To deny this would be
to stop the wheels of government. There are many things upon which wise and useful
legislation must depend which cannot be known to the law-making power, and, must,
therefore, be a subject of inquiry and determination outside of the halls of legislation."
(Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)
In the case of People v. Rosenthal and Osmea, G.R. Nos. 46076 and 46077,
promulgated June 12, 1939, and in Pangasinan Transportation v. The Public Service
Commission, G.R. No. 47065, promulgated June 26, 1940, this Court had occasion to
observe that the principle of separation of powers has been made to adapt itself to the

complexities of modern governments, giving rise to the adoption, within certain limits, of
the principle of "subordinate legislation," not only in the United States and England but
in practically all modern governments. Accordingly, with the growing complexity of
modern life, the multiplication of the subjects of governmental regulations, and the
increased difficulty of administering the laws, the rigidity of the theory of separation of
governmental powers has, to a large extent, been relaxed by permitting the delegation
of greater powers by the legislative and vesting a larger amount of discretion in
administrative and executive officials, not only in the execution of the laws, but also in
the promulgation of certain rules and regulations calculated to promote public interest.
The petitioner further contends that the rules and regulations promulgated by the
respondents pursuant to the provisions of Commonwealth Act No. 548 constitute an
unlawful interference with legitimate business or trade and abridge the right to personal
liberty and freedom of locomotion. Commonwealth Act No. 548 was passed by the
National Assembly in the exercise of the paramount police power of the state.
Said Act, by virtue of which the rules and regulations complained of were promulgated,
aims to promote safe transit upon and avoid obstructions on national roads, in the
interest and convenience of the public. In enacting said law, therefore, the National
Assembly was prompted by considerations of public convenience and welfare. It was
inspired by a desire to relieve congestion of traffic. which is, to say the least, a menace
to public safety. Public welfare, then, lies at the bottom of the enactment of said law,
and the state in order to promote the general welfare may interfere with personal
liberty, with property, and with business and occupations. Persons and property may be
subjected to all kinds of restraints and burdens, in order to secure the general comfort,
health, and prosperity of the state (U.S. v. Gomez Jesus, 31 Phil., 218). To this
fundamental aim of our Government the rights of the individual are subordinated.
Liberty is a blessing without which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into anarchy. Neither should
authority be made to prevail over liberty because then the individual will fall into
slavery. The citizen should achieve the required balance of liberty and authority in his
mind through education and personal discipline, so that there may be established the
resultant equilibrium, which means peace and order and happiness for all. The moment
greater authority is conferred upon the government, logically so much is withdrawn from
the residuum of liberty which resides in the people. The paradox lies in the fact that the
apparent curtailment of liberty is precisely the very means of insuring its preservation.
The scope of police power keeps expanding as civilization advances. As was said in the
case of Dobbins v. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise
the police power is a continuing one, and a business lawful today may in the future,
because of the changed situation, the growth of population or other causes, become a
menace to the public health and welfare, and be required to yield to the public good."
And in People v. Pomar (46 Phil., 440), it was observed that "advancing civilization is
bringing within the police power of the state today things which were not thought of as
being within such power yesterday. The development of civilization, the rapidly
increasing population, the growth of public opinion, with an increasing desire on the part
of the masses and of the government to look after and care for the interests of the
individuals of the state, have brought within the police power many questions for
regulation which formerly were not so considered."cralaw virtua1aw library
The petitioner finally avers that the rules and regulations complained of infringe upon
the constitutional precept regarding the promotion of social justice to insure the wellbeing and economic security of all the people. The promotion of social justice, however,
is to be achieved not through a mistaken sympathy towards any given group. Social
justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social and economic forces by the State so
that justice in its rational and objectively secular conception may at least be
approximated. Social justice means the promotion of the welfare of all the people, the
adoption by the Government of measures calculated to insure economic stability of all
the competent elements of society, through the maintenance of a proper economic and
social equilibrium in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally justifiable, or extraconstitutionally, through the exercise of powers underlying the existence of all
governments on the time-honored principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of

interdependence among divers and diverse units of a society and of the protection that
should be equally and evenly extended to all groups as a combined force in our social
and economic life, consistent with the fundamental and paramount objective of the state
of promoting the health, comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number."cralaw virtua1aw library
In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs
against the petitioner. So ordered.

CARIDAD MAGKALAS,
Petitioner,

G.R. No. 138823

Present:

PUNO, C.J., Chairperson,

CORONA,
- versus -

CARPIO MORALES*,
AZCUNA, and
LEONARDO-DE CASTRO, JJ.

Promulgated:
NATIONAL HOUSING
AUTHORITY,
Respondent.

September 17, 2008

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

DECISION

LEONARDO-DE CASTRO, J.:

In this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
petitioner seeks to set aside and annul the Decision[1] dated March 10, 1999 as well as the
Order[2] dated May 14, 1999 rendered by the Regional Trial Court (RTC) of Caloocan City,
Branch 124, in Civil Case No. C-16464.

The RTC decision dismissed the complaint for damages with prayer for temporary restraining
order/writ of preliminary injunction filed by herein petitioner against the National Housing
Authority (NHA). The RTC also ordered the NHA to proceed with the demolition of petitioners
structure.

The undisputed facts, as found by the RTC, are quoted hereunder:

x x x plaintiff and her predecessors-in-interest have been occupying a lot designated as

TAG-77-0063, Block 1, Barangay 132, located at the corner of 109 Gen. Concepcion and Adelfa
Streets, Bagong Barrio, Caloocan City, for the past 39 years.
On March 26, 1978, P.D. No. 1315 was issued expropriating certain lots at Bagong
Barrio, Caloocan City. In the same Decree, the National Housing Authority (NHA) was named
Administrator of the Bagong Barrio Uban Bliss Project with the former to take possession,
contol (sic) and disposition of the expropriated properties with the power of demolition. During
the Census survey of the area, the structure built by the plaintiff was assigned TAG No.
0063. After conducting studies of the area, the NHA determined that the area where plaintiffs
structure is located should be classified as an area center (open space). The Area Center was
determined in compliance with the requirement to reserve 30% open space in all types of
residential development.
Plaintiff, together with Mr. & Mrs. Josefino Valenton and Mr. & Mrs. Rey Pangilinan,
through counsel, filed an appeal from the decision to designate the area where the plaintiff and
the two other spouses have erected structures, as an Area Center. On January 25, 1985, the NHA,
through its General Manager, sent a letter to the counsel of the plaintiff and the two other
previously named spouses explaining why the area where their structures were erected was
designated as the area center (open space). The said appeal was denied by the NHA. In a letter,
datedAugust 6, 1985, the NHA sent a Notice of Lot Assignment to plaintiff recognizing the latter
as a Censused Owner of a structure with TAG No. 0063-04 which was identified for relocation.
In the same Notice, the NHA informed plaintiff that per Development Program of
Bagong Barrio, she was being assigned to Lot 77, Block 2, Barangay 132.
On August 23, 1985, plaintiff filed a Complaint for Damages with prayer for the issuance
of a restraining order and writ of Preliminary Injunction against the NHA with
the RegionalTrial Court of Caloocan City. This was docketed as Civil Case No. C-12102. The
civil case was filed after the NHA, through Henry Camayo, sent a letter to the plaintiff earlier in
the month of August, 1985 directing said plaintiff to vacate the premises and dismantle her
structure. In an Order, dated July 23, 1981, this civil case docketed as C-12102 was dismissed
with the instruction that the parties exhaust the administrative remedies available to the plaintiff.
Sometime in March, 1994, plaintiff received a letter, dated March 8, 1994 from Ines
Gonzales, the Office-in-charge of District II-NCR. In said letter, plaintiff was advised that her
previous request to stay put in her house which is located within the area designated
as Area Center, was previously denied per resolution of the NHA which was signed as early
as February 21, 1990 by the former manager of the NHA, Monico Jacob. The plaintiff was told
to remove the structure she erected on the area within 30 days and to transfer her residence
to Lot 77, Block 2. It was stressed in said letter that no Judicial Order was required to remove the
plaintiffs structure pursuant to P.D. No. 1472.
Plaintiff prays that, aside from the issuance of a temporary restraining order/writ of
preliminary injunction, defendants be enjoined from transferring plaintiffs residential house from
its present location to another lot and/or demolishing the same without judicial order; payment of
moral damages, in the amount of P50,000.00, for the malicious and illegal acts of defendants;
and payment of P50,000.00 as attorneys fees.
At this juncture, it may not be remiss to state that the two other homeowners, Mr. & Mrs.
Josefino Valenton, and Mr. & Mrs. Rey Pangilinan had already transferred to their allocated lots
at Lot 2, Block 1, and Lot 78, Block 2, respectively.
On March 25, 1994, the Court issued a Temporary Restraining Order (TRO) against
defendants. After hearing and submission of memoranda, plaintiffs prayer for issuance of a writ
of preliminary injunction was denied in an Order dated April 14, 1994.
The Order denying plaintiffs prayer for issuance of a writ of preliminary injunction was
appealed, by way of Petition for Certiorari, to the Court of Appeals (docketed therein as CAG.R. No. 33833). On May 31, 1994, the Court of Appeals, Seventeenth Division, promulgated a
Decision denying the Petition. Plaintiffs (petitioner herein) motion for reconsideration having
been denied in a Resolution dated July 29, 1994, she appealed to the Supreme Court by way of
Petition for Review on Certiorari. The Supreme Court, through the First Division, issued a
Resolution dated October 5, 1994, denying the Petition. An Entry of Judgment on the aforesaid
Resolution was made on December 22, 1994.
Thereafter, pre-trial conference was scheduled on January 9, January 23, February 16,
March 22 and finally on April 25, all in 1996 (an Order dated May 16, 1996 was issued declaring
the pre-trial terminated). During the pre-trial, counsel for plaintiff proposed that the case be

decided based on the memoranda to be submitted by the parties, to which counsel for defendants
agreed. Hence, a Motion for Leave of Court to allow parties to submit memoranda in lieu of trial
was filed by the defendants. Plaintiff filed her comment thereto. After submission of NHAs
Reply and plaintiffs rejoinder, reiterating their respective stands, the Court resolved to grant the
Motion for Leave. In the same Order, the parties were directed to submit their respective
memoranda within thirty (30) days from receipt, on the sole issue of whether or not the NHA can
lawfully relocate the plaintiff and demolish plaintiffs structure.[3]

On March 10, 1999, the trial court promulgated its assailed decision dismissing
petitioners complaint. Petitioners subsequent motion for reconsideration was likewise denied
by the trial court in its Order dated May 14, 1999. Hence, this petition for review of the said
decision and order of the RTC.
In the instant petition for review, petitioner raises the following issues:
A.

WHETHER OR NOT THE DEMOLITION OR RELOCATION OF THE PETITIONERS STRUCTURE WILL

VIOLATE THE VESTED RIGHTS OF THE PETITIONER OVER THE ACQUIRED PROPERTY UNDER THE
SOCIAL JUSTICE CLAUSE OF THE CONSTITUTION.

B.

WHETHER OR NOT R.A. 7279 IMPLIEDLY REPEALED P.D. 1472 AND P.D. 1315.[4]

As to the first issue, petitioner maintains that she had acquired a vested right over the
property subject of this case on the ground that she had been in possession of it for forty (40)
years already. Thus, to order her relocation and the demolition of her house will infringe the
social justice clause guaranteed under the Constitution.
Petitioners contentions must necessarily fail. The NHAs authority to order the relocation
of petitioner and the demolition of her property is mandated by Presidential Decree (P.D.) No.
1315.[5] Under this Decree, the entire Bagong Barrio in Caloocan City was identified as a
blighted area and was thereby declared expropriated. The properties covered under P.D. No.
1315 included petitioners property. The NHA, as the decrees designated administrator for the
national government, was empowered to take possession, control and disposition of the
expropriated properties with the power of demolition of their improvements.[6] Section 2 of
P.D. No. 1315 further states:
Section 2. The comprehensive development plan shall consider the upgrading of existing
dwelling units, the relocation of qualified squatter families to a resettlement area nearby; and the reblocking, re-arrangement and re-alignment of existing dwelling and other structures to allow for the
introduction of basic facilities and services, all in accordance with the provision of national SIR [Slum
Improvement Resettlement] and Metro Manila ZIP [Zonal Improvement Program] Programs. The
Authority [NHA] shall maximize the land use of the area and shall provide for a controlled, orderly and
structured growth of dwellings in an environment provided with adequate sanitary and other physical
facilities. (Words in bracket ours)

Pursuant to Section 2 of P.D. No. 1315, the NHA identified Area 1 where petitioners property
was located as part of the Area Center reserved for open space, after studies have shown that
the development of the area will affect only three (3) structures compared to six (6) or more
structures in the other areas. A stage and recreation center was expected to be constructed at
the Area Center. As a result, petitioner was informed by the NHA that she would be relocated

to Lot 77, Block 2, Barangay 132. However, petitioner adamantly refused to vacate the
property claiming she had acquired a vested right over the same. Her refusal to vacate and
relocate to her assigned lot had hampered the development of the entire area. It should be
noted that to date, only petitioner had refused to comply with the NHA directive as the other
occupants in Area 1 had already vacated the premises.

To stress, P.D. No. 1315 explicitly vests the NHA the power to immediately take possession,
control and disposition of the expropriated properties with the power of demolition.Clearly,
the NHA, by force of law, has the authority to order the relocation of petitioner, and the
demolition of her structure in case of her refusal as this is the only way through which the NHA
can effectively carry out the implementation of P.D. No. 1315.

The NHAs authority to demolish squatters and illegal occupants was further reinforced by P.D.
No. 1472[7] which specifically provides as follows:
SEC. 2. The National Housing Authority shall have the power to summarily eject, without the necessity
of judicial order, any and all squatters colonies on government resettlement projects, as well as any
illegal occupants in any homelot, apartment or dwelling unit owned or administered by it. In the
exercise of such power, the National Housing Authority shall have the right and authority to request the
help of the Barangay Chairman and any peace officer in the locality. xxx.(Emphasis ours)

Inasmuch as petitioners property was located in the area identified as an open space by the
NHA, her continued refusal to vacate has rendered illegal her occupancy thereat. Thus, in
accordance with P.D. No. 1472, petitioner could lawfully be ejected even without a judicial
order.

Neither can it be successfully argued that petitioner had already acquired a vested right over
the subject property when the NHA recognized her as the censused owner by assigning to her
a tag number (TAG No. 77-0063). We quote with approval the trial courts pertinent findings on
the matter:
Plaintiffs structure was one of those found existing during the census/survey of the area, and her
structure was assigned TAG No. 77-0063. While it is true that NHA recognizes plaintiff as the censused
owner of the structure built on the lot, the issuance of the tag number is not a guarantee for lot
allocation. Plaintiff had petitioned the NHA for the award to her of the lot she is occupying. However,
the census, tagging, and plaintiffs petition, did not vest upon her a legal title to the lot she was
occupying, but a mere expectancy that the lot will be awarded to her. The expectancy did not ripen into
a legal title when the NHA, through Ms. Ines Gonzales, sent a letter dated March 8, 1994 informing her
that her petition for the award of the lot was denied.Moreover, the NHA, after the conduct of studies

and consultation with residents, had designated Area 1, where the lot petitioned by plaintiff is located,
as an Area Center.[8]

A vested right is one that is absolute, complete and unconditional and no obstacle exists to its
exercise. It is immediate and perfect in itself and not dependent upon any contingency. To be
vested, a right must have become a title -- legal or equitable -- to the present or future
enjoyment of property.[9]
Contrary to petitioners position, the issuance of a tag number in her favor did not grant
her irrefutable rights to the subject property. The tagging of structures in the Bagong Barrio
area was conducted merely to determine the qualified beneficiaries and bona fide residents
within the area. It did not necessarily signify an assurance that the tagged structure would be
awarded to its occupant as there were locational and physical considerations that must be
taken into account, as in fact, the area where petitioners property was located had been
classified as Area Center (open space). The assignment of a tag number was a mere expectant
or contingent right and could not have ripened into a vested right in favor of petitioner. Her
possession and occupancy of the said property could not be characterized as fixed and
absolute. As such, petitioner cannot claim that she was deprived of her vested right when the
NHA ordered her relocation to another area.

Petitioner invokes the Social Justice Clause of the Constitution, asserting that a poor and
unlettered urban dweller like her has a right to her property and to a decent living.Thus, her
relocation and the demolition of her house would be violative of her right embodied under
Article XIII of the Constitution, to wit:

Sec. 9. The State shall, by law, and for the common good, undertake, in cooperation with the
private sector, a continuing program of urban land reform and housing which will make available at
affordable cost decent housing and basic services to underprivileged and homeless citizens in urban
centers and resettlement areas. It shall also promote adequate employment opportunities to such
citizens. In the implementation of such program the State shall respect the rights of small property
owners. (Underscoring supplied)

Sec. 10. Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except
in accordance with law and in a just and humane manner. (Underscoring supplied)

No resettlement of urban or rural dwellers shall be undertaken without adequate consultation

with them and the communities where they are to be relocated.

Petitioner cannot find solace in the aforequoted Constitutional provisions. Social Justice, as
the term suggests, should be used only to correct an injustice. As the eminent Justice Jose P.
Laurel observed, social justice must be founded on the recognition of the necessity of
interdependence among diverse units of a society and of the protection that should be equally
and evenly extended to all groups as a combined force in our social and economic life,
consistent with the fundamental and paramount objective of the State of promoting the

health, comfort, and quiet of all persons, and of bringing about the greatest good to the
greatest number.[10]
Moreover, jurisprudence stresses the need to dispense justice with an even hand in every
case:

This Court has stressed more than once that social justice or any justice for that matter is for the
deserving, whether he be a millionaire in his mansion or a pauper in his hovel. It is true that, in case of
reasonable doubt, we are called upon to tilt the balance in favor of the poor to whom the Constitution
fittingly extends its sympathy and compassion. But never is it justified to give preference to the poor
simply because they are poor, or to reject the rich simply because they are rich, for justice must always
be served for poor and rich alike, according to the mandate of the law.[11] (Underscoring supplied)

Hence, there is a need to weigh and balance the rights and welfare of both contending
parties in every case in accordance with the applicable law, regardless of their situation in life.

In the instant case, the relocation of petitioner and the demolition of her structure were in
accordance with the mandate of P.D. No. 1315 which was enacted primarily to address the
housing problems of the country and to adopt an effective strategy for dealing with slums,
squatter areas and other blighted communities in urban areas. Significantly, the whereas
clause of P.D. No. 1315 states:

WHEREAS, the Constitution of the Philippines mandates that the State shall establish, maintain and
ensure adequate social services in the field of housing, to guarantee the enjoyment of the people of a
decent standard of living and directs that The State shall promote social justice to ensure the dignity,
welfare and security of all the people xxx.

For sure, the NHAs order of relocating petitioner to her assigned lot and demolishing her
property on account of her refusal to vacate was consistent with the laws fundamental
objective of promoting social justice in the manner the will inure to the common good. The
petitioner cannot disregard the lawful action of the NHA which was merely implementing P.D.
No. 1315. It is also worth noting that petitioners continued refusal to leave the subject
property has hindered the development of the entire area. Indeed, petitioner cannot invoke
the social justice clause at the expense of the common welfare.

Anent the second issue, petitioner avers that P.D. No. 1315 and P.D. No. 1472 were impliedly
repealed by R.A. No. 7279, otherwise known as the Urban Development and Housing Act of
1992.[12] She contends that while P.D. No. 1315 and P.D. No. 1472 authorized the NHA to eject
without the necessity of a judicial order all squatter colonies in government resettlement
projects, R.A. No. 7279 discouraged such eviction and demolition without a court
order. According to petitioner, R.A. No. 7279, being the later law, impliedly repealed the
former laws, i.e. P.D. No. 1315 and P.D. No. 1472, following the legal axiom that when a later
law is passed with provisions contrary to the former law, an implied repeal of the former law
takes effect. In particular, petitioner cites Section 28 of R.A. No. 7279 which provides:
Sec. 28. Eviction and Demolition Eviction or demolition as a practice shall be discouraged.
Eviction or demolition, however, may be allowed under the following situations:

(a) When persons or entities occupy danger areas such as esteros, railroad tracks, garbage
dumps, riverbanks, shorelines, waterways and other public places such as sidewalks, roads,
parks and playgrounds;

(b) When government infrastructure projects with available funding are about to be
implemented; or

(c) When there is a court order for eviction and demolition.

Petitioner asserts that the afore-quoted provision of R.A. No. 7279 is inconsistent with
Section 1 of P.D. No. 1315 and Section 2 of P.D. No. 1472, which state as follows:
Sec. 1 (P.D. No. 1315) xxx. The National Housing Authority hereinafter referred to as the
Authority is designated administrator for the national government and is authorized to immediately take
possession, control and disposition of the expropriated properties with the power of demolition of their
improvements. xxx.

Sec. 2 (P.D. No. 1472) - The National Housing Authority shall have the power to summarily eject,
without the necessity of judicial order, any and all squatters colonies on government resettlement
projects, as well as any illegal occupants in any homelot, apartment or dwelling unit owned or
administered by it. xxx.

From a careful reading of the foregoing provisions, we hold that R.A. No. 7279 does not
necessarily repeal P.D. No. 1315 and P.D. No. 1472 as it does not contain any provision which
categorically and expressly repeals the provisions of P.D. No. 1315 and P.D. No. 1472. Neither
could there be an implied repeal. It is a well-settled rule of statutory construction that repeals
by implication are not favored. The rationale behind the rule is explained as follows:
Repeal of laws should be made clear and expressed. Repeals by implication are not favored as
laws are presumed to be passed with deliberation and full knowledge of all laws existing on the
subject. Such repeals are not favored for a law cannot be deemed repealed unless it is clearly manifest
that the legislature so intended it. The failure to add a specific repealing clause indicates that the intent
was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist in the
terms of the new and old laws.[13]

Likewise, in another case, it was held:

Well-settled is the rule that repeals of laws by implication are not favored, and that courts must
generally assume their congruent application. The two laws must be absolutely incompatible, and a
clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is
expressed in the maxim, interpretare et concordare leqibus est optimus interpretendi, i.e., every statute
must be so interpreted and brought into accord with other laws as to form a uniform system of
jurisprudence. The fundament is that the legislature should be presumed to have known the existing
laws on the subject and not have enacted conflicting statutes. Hence, all doubts must be resolved

against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all
laws on the subject.[14]

We find, as the trial court has found, no irreconcilable conflict or repugnancy between
Section 28 of R.A. No. 7279 and P.D. No. 1315 and No. 1472, rather, they can be read together
and harmonized to give effect to their provisions. It should be stressed that Section 28 of R.A.
No. 7279 does not totally and absolutely prohibit eviction and demolition without a judicial
order as in fact it provides for exceptions. Pursuant to established doctrine, the three (3)
statutes should be construed in light of the objective to be achieved and the evil or mischief to
be suppressed by the said laws, and they should be given such construction as will advance the
object, suppress the mischief, and secure the benefits intended.[15] It is worthy to note that the
three laws (P.D. No. 1315, P.D. No. 1472 and R.A. No. 7279) have a common objective to
address the housing problems of the country by establishing a comprehensive urban
development and housing program for the homeless. For this reason, the need to harmonize
these laws all the more becomes imperative. Hence, in construing the three laws together, we
arrive at a conclusion that demolition and eviction may be validly carried out even without a
judicial order in certain instances, to wit:
(1)

when the property involved is an expropriated property in Bagong

Barrio, Caloocan City pursuant to Section 1 of P.D. No. 1315,

(2)

when there are squatters on government resettlement projects and illegal

occupants in any homelot, apartment or dwelling unit owned or administered by
the NHA pursuant to Section 2 of P.D. No. 1472,

(3)

when persons or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways and other public places such as
sidewalks, roads, parks and playgrounds, pursuant to Section 28(a) of R.A. No.
7279;

(4)

when government infrastructure projects with available funding are about to be

implemented pursuant to Section 28(b) of R.A. No. 7279.

It readily appears that R.A. No. 7279 does not foreclose the NHAs authority to dismantle
the house of petitioner. Besides, under Section 28(b) of R.A. No. 7279, demolition may be
carried out when government infrastructure projects with available funding are about to be
implemented. Under P.D. No. 1315, the government has set aside the amount of P40 million
for the establishment and upgrading of housing facilities and services in Bagong
Barrio.[16] Thus, on the ground of a much-delayed government infrastructure project about to
be implemented, the NHA has the authority to carry out the summary eviction and demolition
of petitioners structure on the subject lot.

WHEREFORE, the petition for review is hereby DENIED. The assailed decision of the Regional
Trial Court in Civil Case No. C-16464 is hereby AFFIRMED.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

RENATO C. CORONA

CONCHITA CARPIO MORALES

Associate Justice

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
[2]

Decided by Judge Victoria Isabel A. Paredes; rollo, pp. 37-46.

Id., at 47-48.

* Additional Member as per Special Order No. 515.

[3]
Id., at 37-40.
[4]
Id., at 9.
[5]
Entitled, Providing for the Expropriation of a Landed Estate Registered under TCT No. 70298, 78960, Portion of 71357, 2017 and
2018 and All Transfer Certificates of Title Derived Therefrom, in Bagong Barrio, Caloocan City for the Upgrading and the Disposal
of Lots Therein to their Present Bonafide Occupants and Other Qualified Squatter Families and Authorizing the Appropriation of
Funds for the Purpose. Approved on March 26, 1978.
[6]
Section 1, P.D. No. 1315.
[7]
Entitled, Amending Republic Act Nos. 4852 and 6026 by Providing Additional Guidelines in the Utilization, Disposition and
Administration of All Government Housing and Resettlement Projects. Approved on June 11, 1978.
[8]
Rollo, p. 41.
[9]
Boncodin v. National Power Corporation Employees Consolidated Union (NECU), G.R. No. 162716, September 27, 2006, 503
SCRA 611, 626-627.
[10]
Calalang v. Williams, 70 Phil. 726, 735 (1940).
[11]
Gelos v. Court of Appeals, G.R. No. 86186, May 8, 1992, 208 SCRA 608, 616.
[12]
Approved on March 24, 1992.
[13]
Secretary of Finance v. Ilarde, G.R. No. 121782, May 9, 2005, 458 SCRA 218, 233.
[14]
Hagad v. Gozo-Dadole, G.R. No. 108072, December 12, 1995, 251 SCRA 242, 252 .
[15]
Intia, Jr. v. Commission on Audit, G.R. No. 131529, April 30, 1999, 306 SCRA 593, 609.
[16]
Section 6, P.D. No. 1315.

ALBERTO P. OXALES, G.R. No. 152991

Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
*

- versus - QUISUMBING
AUSTRIA-MARTINEZ,
**
AZCUNA, and
REYES, JJ.
Promulgated:
UNITED LABORATORIES, INC.,
Respondent. July 21, 2008
x--------------------------------------------------x

DECISION

REYES, R.T., J.:

HOW should a private company retirement plan for employees be implemented vis--vis
The Retirement Pay Law (Republic Act No. 7641)?
Papaano ipapatupad ang isang plano ng pribadong kompanya para sa pagreretiro ng mga
empleyado sa harap ng Batas ng Pagbabayad sa Pagreretiro (Batas Republika Blg. 7641)?

We address the concern in this appeal by certiorari of the Decision[1] of the Court of Appeals
(CA) affirming the Resolution[2] and Decision[3] of the Labor Arbiter and the National Labor
Relations Commission (NLRC), respectively, dismissing petitioner Alberto P. Oxales complaint
for additional retirement benefits, recovery of the cash equivalent of his unused sick leaves,
damages, and attorneys fees, against respondent United Laboratories, Inc. (UNILAB).
The Facts
Sometime in 1959, UNILAB established the United Retirement Plan (URP).[4] The plan
is a comprehensive retirement program aimed at providing for retirement, resignation,
disability, and death benefits of its members. An employee of UNILAB becomes a member of
the URP upon his regularization in the company. The URP mandates the compulsory retirement
of any member-employee who reaches the age of 60.
Both UNILAB and the employee contribute to the URP. On one hand, UNILAB provides
for the account of the employee an actuarially-determined amount to Trust Fund A. On the
other hand, the employee chips in 2% of his monthly salary to Trust Fund B. Upon retirement,
the employee gets both amounts standing in his name in Trust Fund A and Trust Fund B.
As retirement benefits, the employee receives (1) from Trust Fund A a lump sum of 1
months pay per year of service based on the members last or terminal basic monthly
salary,[5] and (2) whatever the employee has contributed to Trust Fund B, together with the
income minus any losses incurred. The URP excludes commissions, overtime, bonuses, or extra
compensations in the computation of the basic salary for purposes of retirement.

Oxales joined UNILAB on September 1, 1968. He was compulsorily retired by UNILAB

when he reached his 60th birthday on September 7, 1994, after having rendered service of
twenty-five (25) years, eleven (11) months, and six (6) days. He was then Director of
Manufacturing Services Group.
In computing the retirement benefits of Oxales based on the 1 months for every year of
service under the URP, UNILAB took into account only his basic monthly salary. It did not
include as part of the salary base the permanent and regular bonuses, reasonable value of food
allowances, 1/12 of the 13th month pay, and the cash equivalent of service incentive leave.
Thus, Oxales received from Trust Fund A P1,599,179.00, instead of P4,260,255.70. He
also received P176,313.06, instead of P456,039.20 as cash equivalent of his unused sick
leaves. Lastly, he received P397,738.33 from his contributions to Trust Fund B. In sum, Oxales
received the total amount of P2,173,230.39 as his retirement benefits.
On August 21, 1997, Oxales wrote UNILAB, claiming that he should have been
paid P1,775,907.23 more in retirement pay and unused leave credits. He insisted that his
bonuses, allowances and 13th month pay should have been factored in the computation of his
retirement benefits.[6]
On September 9, 1997, UNILAB wrote[7] back and reminded Oxales about the provision
of the URP excluding any commissions, overtime, bonuses or extra compensations in the
computation of the basic salary of the retiring employee.
Disgruntled, Oxales filed a complaint with the Labor Arbiter for (1) the correct
computation of his retirement benefits, (2) recovery of the cash equivalent of his unused sick
leaves, (3) damages, and (4) attorneys fees. He argued that in the computation of his retirement
benefits, UNILAB should have included in his basic pay the following, to wit: (a) cash
equivalent of not more than five (5) days service incentive leave; (b) 1/12th of 13th month pay;
and (c) all other benefits he has been receiving.
Efforts were exerted for a possible amicable settlement. As this proved futile, the parties
were required to submit their respective pleadings and position papers.
Labor Arbiter, NLRC and CA Dispositions
On June 30, 1998, Labor Arbiter Romulus A. Protasio rendered a decision dismissing the
complaint, thus:
WHEREFORE, premises considered, judgment is hereby rendered dismissing the
instant complaint for lack of merit.
SO ORDERED.[8]

The Labor Arbiter held that the URP clearly excludes commission, overtime, bonuses, or other
extra compensation. Hence, the benefits asked by Oxales to be included in the computation of
his retirement benefits should be excluded.[9]
The Arbiter also held that the inclusion of the fringe benefits claimed by Oxales would put
UNILAB in violation of the terms and conditions set forth by the Bureau of Internal Revenue
(BIR) when it approved the URP as a tax-qualified plan. More, any overpayment of benefits

would adversely affect the actuarial soundness of the plan. It would also expose the trustees of
the URP to liabilities and prejudice the other employees. Worse, the BIR might even withdraw
the tax exemption granted to the URP.[10] Lastly, the Labor Arbiter opined that the URP
precludes the application of the provisions of R.A. No. 7641.[11]
Oxales appealed to the NLRC. On February 8, 1999, the NLRC affirmed the decision of the
Labor Arbiter, disposing as follows:
WHEREFORE, in view thereof, the instant appeal is hereby dismissed for lack of merit
and the appealed decision is ordered affirmed.
SO ORDERED.[12]

The NLRC ruled that the interpretation by Oxales of R.A. No. 7641 is selective. He only
culled the provisions that are beneficial to him, putting in grave doubt the sincerity of his
motives. For instance, he claims that the value of the food benefits and other allowances should
be included in his monthly salary as multiplicand to the number of his years of service with
UNILAB. At the same time, however, he does not intend to reduce the 1 month salary as
multiplier under the URP to under R.A. No. 7641.[13]
The NLRC agreed with the Labor Arbiter that the provisions of R.A. No. 7641 do not apply in
view of the URP. The NLRC also took into account the fact that the benefits granted to Oxales
by virtue of the URP was even higher than what R.A. No. 7641 requires.[14]
His motion for reconsideration having been denied, Oxales filed with the CA a petition
for certiorari under Rule 65.

In a decision promulgated on April 12, 2002, the CA dismissed the petition. The CA
ruled that the petition of Oxales calls for a review of the factual findings of the Labor Arbiter as
affirmed by the NLRC. It is not the normal function of the CA in a special civil action
for certiorari to inquire into the correctness of the evaluation of the evidence by the Labor
Arbiter. Its authority is confined only to issues of jurisdiction or grave abuse of discretion.[15]
Just like the Labor Arbiter and the NLRC, the CA also held that R.A. No. 7641 is
applicable only in the absence of a retirement plan or agreement providing for the retirement
benefits of employees in an establishment.[16]
Finally, the CA denied the claim of Oxales to moral and exemplary damages. According
to the appellate court, he failed to prove the presence of bad faith or fraud on the part of
UNILAB. His mere allegations of having suffered sleepless nights, serious anxiety, and mental
anguish are not enough. No premium should be placed on the right to litigate.[17]
Left with no other option, Oxales filed the present recourse under Rule 45 of the 1997 Rules of
Civil Procedure.[18]
Issues
In his Memorandum,[19] Oxales raises the following issues for Our disposition, to wit:
1. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
FINDING THAT ACCORDING TO PREVAILING JURISPRUDENCE, SUCH ERRORS IN
THE COMPUTATION OF RETIREMENT BENEFITS OF PETITIONER SHOULD BE
CORRECTED IN A SPECIAL ACTION FOR CERTIORARI;

2. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED IN NOT

FINDING THAT THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN
INCORRECTLY INTERPRETING THE URP TO EXCLUDE SEVERAL REMUNERATIONS
FROM THE SAID SALARY BASE;
3. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED AND
COMMITTED GRAVE ABUSE OF DISCRETION IN TOTALLY IGNORING THE ISSUE
AND IN NOT FINDING THAT THE NLRC COMMITTED GRAVE ABUSE OF
DISCRETION IN INCORRECTLY INTERPRETING THE URP TO EXCLUDE
PERMANENT AND REGULAR ALLOWANCES FROM THE SALARY BASE FOR
COMPUTING RETIREMENT BENEFITS OF PETITIONER;
4. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
FINDING THAT THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN
INCORRECTLY INTERPRETING THE URP TO EXCLUDE PERMANENT AND
REGULAR REMUNERATIONS MISLABELED AS BONUSES FROM THE SALARY BASE
FOR COMPUTING THE RETIREMENT BENEFITS OF THE PETITIONER;
5. WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN INCORRECTLY
INTERPRETING THE URP TO EXCLUDE ONE TWELFTH (1/12th) OF THE STATUTORY
THIRTEENTH MONTH PAY FROM THE SALARY BASE FOR COMPUTING
RETIREMENT BENEFITS;
6. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED IN THE
INTERPRETATION OF R.A. NO. 7641 WHEN IT CONCLUDED THAT THE SAID LAW IS
APPLICABLE ONLY IN THE ABSENCE OF RETIREMENT PLAN OR AGREEMENT
PROVIDING FOR THE RETIREMENT BENEFITS OF EMPLOYEES IN AN
ESTABLISHMENT;
7. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
FINDING THAT THE DEFINITION OF SALARY UNDER THE IMPLEMENTING RULES
OF R.A. NO. 7641 SHOULD BE INTERPRETED TO INCLUDE THE PERMANENT AND
REGULAR REMUNERATIONS OF PETITIONER IN THE SALARY BASE FOR
COMPUTING RETIREMENT BENEFITS;
8. WHETHER OR NOT THE LABOR ARBITER, THE NLRC, AND COURT OF APPEALS
COMMITTED GRAVE ABUSE OF DISCRETION IN IGNORING AND NOT RESOLVING
THE ISSUES REGARDING PETITIONERS UNPAID CASH EQUIVALENT OF THE
UNUSED SICK LEAVE CREDITS;
9. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED IN NOT RULING
THAT
THE
NLRC
GRAVELY
ABUSED
ITS

DISCRETION IN ITS FAILURE TO PROPERLY INTERPRET THE URP IN DETERMINING

THE EMPLOYMENT PERIOD OF PETITIONER FOR THE PURPOSE OF COMPUTING
RETIREMENT BENEFITS;
10. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
RULING THAT THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN NOT
REINSTATING THE MEDICAL RETIREMENT BENEFITS OF PETITIONER;
11. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED AND GRAVELY
ABUSED ITS DISCRETION IN TOTALLY AND ARBITRARILY IGNORING THE ISSUE
AND IN NOT FINDING THAT THE NLRC COMMITTED GRAVE ABUSE OF
DISCRETION IN RENDERING A DECISION IN VIOLATION OF THE CONSTITUTIONAL
REQUIREMENTS WHICH IN EFFECT DENIED PETITIONERS RIGHT TO DUE
PROCESS;
12. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED AND GRAVELY
ABUSED ITS DISCRETION IN LIKEWISE RENDERING A DECISION IN VIOLATION OF
THE CONSTITUTIONAL REQUIREMENT THAT DECISIONS SHOULD EXPRESS
CLEARLY AND DISTINCTLY THE FACTS OF THE CASE AND THE LAW ON WHICH IT
IS BASED;
13. WHETHER OR NOT THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
GRANTING MORAL AND EXEMPLARY DAMAGES AND ATTORNEYS FEES TO
PETITIONER;
14. WHETHER OR NOT THE SUPREME COURT SHOULD GRANT PETITIONER
UNPAID RETIREMENT PAY, UNPAID CASH EQUIVALENT OF UNUSED LEAVE
CREDITS, REINSTATEMENT OF MEDICAL BENEFITS, MORAL AND EXEMPLARY
DAMAGES, AND ATTORNEYS FEES.[20] (Underscoring supplied)

The issues posed by Oxales may be compressed as follows: first, whether in the
computation of his retirement and sick leave benefits, UNILAB should have factored such
benefits like bonuses, cash and meal allowances, rice rations, service incentive leaves, and 1/12
of the 13th month pay; second, whether R.A. No. 7641 is applicable for purposes of computing
his retirement benefits; and third, whether UNILAB is liable for moral damages, exemplary
damages, and attorneys fees.

Our Ruling
The clear language of the URP should be respected.
A retirement plan in a company partakes the nature of a contract, with the employer and
the employee as the contracting parties. It creates a contractual obligation in which the promise
to pay retirement benefits is made in consideration of the continued faithful service of the
employee for the requisite period.[21]
The employer and the employee may establish such stipulations, clauses, terms, and
conditions as they may deem convenient.[22] In Allgeyer v. Louisiana,[23] New York Life Ins. Co.
v. Dodge,[24] Coppage v. Kansas,[25] Adair v. United States,[26] Lochner v. New
York,[27] and Muller v. Oregon,[28] the United States Supreme Court held that the right to
contract about ones affair is part and parcel of the liberty of the individual which is protected by
the due process of law clause of the Constitution.

The obligations arising from the agreement between the employer and the employee have
the force of law between them and should be complied with in good faith.[29]However, though
the employer and the employee are given the widest latitude possible in the crafting of their
contract, such right is not absolute. There is no such thing as absolute freedom of contract. A
limitation is provided for by the law itself. Their stipulations, clauses, terms, and conditions
should not be contrary to law, morals, good customs, public order, or public policy. [30] Indeed,
the law respects the freedom to contract but, at the same time, is very zealous in protecting the
contracting parties and the public in general. So much so that the contracting parties need not
incorporate the existing laws in their contract, as the law is deemed written in every
contract. Quando abest, proviso parties, adest proviso legis. When the provision of the party is
lacking, the provision of the law supplies it. Kung may kulang na kondisyon sa isang
kasunduan, ang batas ang magdaragdag dito.
Viewed from the foregoing, We rule that Oxales is not entitled to the additional
retirement benefits he is asking. The URP is very clear: basic monthly salary for purposes of
computing the retirement pay is the basic monthly salary, or if daily[,] means the basic rate of
pay converted to basic monthly salary of the employee excluding any commissions, overtime,
bonuses, or extra compensations.[31] Inclusio unius est exclusio alterius. The inclusion of one is
the exclusion of others. Ang pagsama ng isa, pagpwera naman sa iba.
The URP is not contrary to law, morals, good customs, public order, or public policy
to merit its nullification. We, thus, sustain it. At first blush, the URP seems to be
disadvantageous to the retiring employee because of the exclusion of commissions, overtime,
bonuses, or extra compensations in the computation of the basic monthly salary.However, a
close reading of its provisions would reveal otherwise. We quote with approval the explanation
of the NLRC in this regard, viz.:
x x x the United Retirement Plan of the respondent [Unilab] has a one and one-half
months salary for every year of service as the basis of entitlement. Under the new law, only onehalf month of the retirees salary inclusive however, of not more than five (5) days of service
incentive leave and one-twelfth (1/12) of the 13th month pay are used as the bases in the
retirement benefits computation.
Mathematically speaking therefore, complainants [Oxales] benefits received amounting
to P1,599,179.00 under Trust Fund A together with the cash equivalent of his unused leaves
which has an amount of P176,313.06 and his contribution in the Trust Fund B amounting
to P397,738.33 are way above the entitlement he could have received under Republic Act 7641,
otherwise known as the New Retirement Law.[32] (Underscoring supplied)

Both law[33] and jurisprudence[34] mandate that if the terms of a contract are clear and
leave no doubt upon the intention of the contracting parties, the literal meaning of its
stipulations shall control. Thus, if the terms of a writing are plain and unambiguous, there is no
room for construction, since the only purpose of judicial construction is to remove doubt and
uncertainty.[35] Only where the language of a contract is ambiguous and uncertain that a court
may, under well-established rules of construction, interfere to reach a proper construction and
make certain that which in itself is uncertain.[36] Where the language of a contract is plain and
unambiguous, its meaning should be determined without reference to extrinsic facts or aids.[37]
R.A. No. 7641 does not apply in view of the URP which
gives to the retiring employee more than what the law
requires; the supporting cases cited by Oxales are offtangent.

R.A. No. 7641, otherwise known as The Retirement Pay Law, only applies in a situation
where (1) there is no collective bargaining agreement or other applicable employment contract
providing for retirement benefits for an employee; or (2) there is a collective bargaining
agreement or other applicable employment contract providing for retirement benefits for an
employee, but it is below the requirements set for by law. The reason for the first situation is to
prevent the absurd situation where an employee, who is otherwise deserving, is denied
retirement benefits by the nefarious scheme of employers in not providing for retirement
benefits for their employees. The reason for the second situation is expressed in the latin
maxim pacta privata juri publico derogare non possunt. Private contracts cannot derogate from
the public law. Ang kasunduang pribado ay hindi makasisira sa batas publiko. Five (5)
reasons support this conclusion.
First, a plain reading of the Retirement Pay Law. R.A. No. 7641 originated from the
House of Representatives as House Bill 317 which was later consolidated with Senate Bill
132. It was approved on December 9, 1992 and took effect on January 7, 1993.[38] Amending
Article 287 of the Labor Code, it provides as follows:

Art. 287. Retirement. Any employee may be retired upon reaching the retirement age
established in the collective bargaining agreement or other applicable employment contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits as
he may have earned under existing laws and any collective bargaining agreement and other
agreements: Provided, however, that an employees retirement benefits under any collective
bargaining and other agreements shall not be less than those provided herein.
In the absence of a retirement plan or agreement providing for retirement benefits of
employees in the establishment, an employee upon reaching the age of sixty (60) years or more,
but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age,
who has served at least five (5) years in the said establishment, may retire and shall be entitled to
retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a
fraction of at least six (6) months being considered as one whole year.
Unless the parties provide for broader inclusions, the term one-half (1/2) month salary
shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash
equivalent of not more than five (5) days of service incentive leaves. (Underscoring supplied)

Second, the legislative history of the Retirement Pay Law. It may be recalled that R.A. No.
7641 traces back its history in the case of Llora Motors, Inc. v. Drilon.[39] In this case, the Court
held that the then Article 287 of the Labor Code[40] and its Implementing Rules[41] may not be
the source of an employees entitlement to retirement pay absent the presence of a collective
bargaining agreement or voluntary company policy that provides for retirement benefits for the
employee.[42]
Third, the legislative intent of the Retirement Pay Law. A reading of the explanatory
note of Representative Alberto S. Veloso would show why Congress sought to pass the
Retirement Pay Law: many employers refuse or neglect to adopt a retirement plan for their
employees because of the absence of any legal compulsion for them to do so, thus:
When the Labor Code came into effect in 1974, retirement pay had, as a matter of course,
been granted to employees in the private sector when they reach the age of sixty (60) years.This
had practically been the rule observed by employers in the country pursuant to the rules and
regulations issued by the then Minister of Labor and Employment to implement the provisions of
the Labor Code, more particularly, where there is no provision for the same in the collective
bargaining agreement or retirement plan of the establishment.
At present, however, such benefit of retirement pay is no longer available where there is
no collective agreement thereon or any retirement plan at all. This is so because, in a decision of
the Supreme Court (Llora Motors vs. Drilon and NLRC, et al., G.R. No. 82895, November 7,

1989), it was held that the grant of such benefit under the rules implementing the Labor Code is
not supported by any express provision of the Labor Code itself. In short, there is no specific
statutory basis for the grant of retirement benefits for employees in the private sector reaching
the age of 60 years.
Since the time of such nullification by the Supreme Court of said implementing rules on
retirement pay for private sector employees, many employers simply refuse or neglect to adopt
any retirement plan for their workers, obviously emboldened by the thought that, after said
ruling, there is no longer any legal compulsion to grant such retirement benefits. In our
continuous quest to promote social justice, unfair situations like this, productive of grievance or
irritants in the labor-management relations, must immediately be corrected or remedied by
legislation. (Underscoring supplied)

Fourth, the title of the Retirement Pay Law. The complete title of R.A. No. 7641 is An
Act Amending Article 287 of Presidential Decree No. 442, As Amended, Otherwise Known as
the Labor Code of the Philippines, By Providing for Retirement Pay to Qualified Private Sector
in the Absence of Any Retirement Plan in the Establishment. Res ipsa loquitur. The thing
speaks for itself. Isang bagay na nangungusap na sa kanyang sarili.
Fifth, jurisprudence. In Oro Enterprises, Inc. v. National Labor Relations Commission,[43] the
Court held that R.A. No. 7641 is undoubtedly a social legislation. The law has been enacted as a
labor protection measure and as a curative statute that absent a retirement plan devised by, an
agreement with, or a voluntary grant from, an employer can respond, in part at least, to the
financial well-being of workers during their twilight years soon following their life of labor.[44]
In Pantranco North Express, Inc. v. National Labor Relations Commission,[45] the Court
held that Article 287 of the Labor Code makes clear the intention and spirit of the law to give
employers and employees a free hand to determine and agree upon the terms and conditions of
retirement,[46] and that the law presumes that employees know what they want and what is good
for them absent any showing that fraud or intimidation was employed to secure their consent
thereto.[47]
Lastly, in Brion v. South Philippine Union Mission of the Seventh Day Adventist
Church,[48] the Court ruled that a reading of Article 287 of the Labor Code would reveal that the
employer and employee are free to stipulate on retirement benefits, as long as these do not fall
below floor limits provided by law.[49]
We are aware of the several cases cited by Oxales to support his claim that the computation of
his retirement benefits should not have been limited to the basic monthly salary as defined by
the URP. However, these cases negate, rather than support, his claim.
In Villena v. National Labor Relations Commission,[50] the compulsory retirement of Villena
was, in fact, an illegal dismissal in disguise. Thus, the Court ordered the Batangas, Laguna,
Tayabas Bus Co. to pay Villena his full backwages, allowances, and other benefits for a period
of three (3) years after his illegal dismissal on April 24, 1987, until he reached the compulsory
retirement age plus his retirement benefits equivalent to his gross monthly pay, allowances and
other benefits for every year of service up to age sixty (60), which is the normal retirement age
for him.[51]
The distinction between Villena with the instant case is readily apparent. The Court used
the regular compensation of Villena in computing his retirement benefits because the provision
of the CBA for rank-and-file employees is inapplicable to him, being a managerial
employee. The Villena case was also decided before the passage of R.A. No. 7641.
In Planters Products, Inc. v. National Labor Relations Commission,[52] the petitioning
employees were given termination benefits based on their basic salary. However, Planters

Products, Inc. had integrated the allowances of its remaining employees into their basic
salary. Thus, it was the basic salary that increased. Also, it was the basic salary as increased (not
the basic salary and allowances) which still formed the basis for the computation of the
termination benefits of the remaining employees of the company. The Court held that fairness
demanded that the terminated employees receive the same treatment. [53] Clearly, such situation
is absent here.
In Manuel L. Quezon University v. National Labor Relations Commission,[54] the issue
raised was whether respondents are entitled to the retirement benefits provided for under R.A.
No. 7641, even if petitioner has an existing valid retirement plan. The Court held that the
coverage of the law applies to establishments with existing collective bargaining or other
agreements or voluntary retirement plans whose benefits are less than those prescribed under
the proviso in question.[55]
Admittedly, this Court held in the case of Songco v. National Labor Relations
Commission[56] that not only the basic salary but also the allowances (like transportation and
emergency living allowances) and earned sales commissions should be taken into consideration
in computing the backwages and separation pay of the employee. However, a closer
examination of the case would show that the CBA[57] between Zuellig and F.E. Zuellig
Employees Association, in which Songco was a member, did not contain an explicit definition
of what salary is. Neither was there any inclusions or exclusions in the determination of the
salary of the employee. Here, the URP has an explicit provision excluding any commissions,
overtime, bonuses, or extra compensations for purposes of computing the basic salary of a
retiring employee. Too, the Songco case was decided before the passage of R.A. No. 7641.
Clearly then, R.A. No. 7641 does not apply because the URP grants to the retiring employee
more than what the law gives. Under the URP, the employee receives a lump sum of 1 pay per
year of service, compared to the minimum month salary for every year of service set forth by
R.A. No. 7641.

Oxales is trying to have the best of both worlds. He wants to have his cake and eat it too: the 1
months formula under the URP, and the inclusion of the value of food benefits and other
allowances he was entitled to as employee of UNILAB with his monthly salary as the
multiplicand of his number of years in the service. This he should not be permitted to do, lest a
grave injustice is caused to UNILAB, and its past and future retirees.
We agree with the NLRC observation on this score:
As an illustration, Complainant claims that his monthly salary as the multiplicand of his number
of years in the service should include the value of the food benefits and other allowances he was
entitled while in the employ of respondent. However, he did not even, by implication, intend to
reduce the 1 month salary as multiplier under the URP to under the law he invoked. This is a sign
of covetousness, unfair both to the employer and those employees who have earlier retired under
said plan.[58]

Oxales is not entitled to the reinstatement of his medical

benefits, which are not part of the URP. Corollarily, he
is not also entitled to moral damages, exemplary
damages, and attorneys fees.

Oxales claims that UNILAB unilaterally revoked his medical benefits, causing him humiliation
and anxiety. This, he argues, entitles him to moral damages, exemplary damages, plus attorneys
fees.
We cannot agree. The records bear out that after Oxales retired from UNILAB, he chose to join
a rival company, Lloyds Laboratories, Inc. As UNILAB correctly puts it, [i]f any employer can
legally and validly do the supreme act of dismissing a disloyal employee for having joined or
sympathized with a rival company, with more reason may it do the lesser act of merely
discontinuing a benefit unilaterally given to an already-retired employee.[59] As a retired
employee, Oxales may not claim a vested right on these medical benefits. A careful
examination of the URP would show that medical benefits are not included in the URP.
Indeed, while there is nothing wrong in the act of Oxales in joining a rival company after
his retirement, justice and fair play would dictate that by doing so, he cannot now legally
demand the continuance of his medical benefits from UNILAB. To rule otherwise would result
in an absurd situation where Oxales would continue to receive medical benefits from UNILAB
while working in a rival company. We note that these medical benefits are merely unilaterally
given by UNILAB to its retired employees.
We are not unaware of this Courts pronouncement in Brion v. South Philippine Union Mission
of the Seventh Day Adventist Church.[60] However, Oxales plight differs fromBrion because the
URP does not expressly cover medical benefits to retirees. In contrast, the retired employee
in Brion had acquired a vested right to the withheld benefits.
The claim of Oxales to moral damages, exemplary damages, and attorneys fees must also
be denied for want of basis in law or jurisprudence. On this score, We echo the pronouncement
of the Court in Audion v. Electric Co., Inc. v. National Labor Relations Commission,[61] to wit:
Moral and exemplary damages are recoverable only where the dismissal of an employee
was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a
manner contrary to morals, good customs or public policy. The person claiming moral damages
must prove the existence of bad faith by clear and convincing evidence for the law always
presumes good faith. It is not enough that one merely suffered sleepless nights, mental anguish,
serious anxiety as the result of the actuations of the other party. Invariably, such action must be
shown to have been willfully done in bad faith or with ill motive, and bad faith or ill motive
under the law cannot be presumed but must be established with clear and convincing evidence.
Private respondent predicated his claim for such damages on his own allegations of sleepless

nights and mental anguish, without establishing bad faith, fraud or ill motive as legal basis
therefor.
Private respondent not being entitled to award of moral damages, an award of exemplary
damages is likewise baseless. Where the award of moral and exemplary damages is eliminated,
so must the award for attorneys fees be deleted. Private respondent has not shown that he is
entitled thereto pursuant to Art. 2208 of the Civil Code.[62] (Citations omitted)

Here, there was no dismissal, as Oxales was retired by UNILAB by virtue of the URP. He was
also paid his complete retirement benefits.
Epilogue
It is not disputed that Oxales has worked tirelessly for UNILAB. For one thing, he has
spent a considerable amount of years with the company. For another, he has contributed much
to its growth and expansion. However, even as We empathize with him in his time of great
need, it behooves Us to interpret the law according to what it mandates.
We reiterate the time-honored principle that the law, in protecting the rights of the laborer,
authorizes neither oppression nor self-destruction of the employer. While the Constitution is
committed to the policy of social justice and the protection of the working class, management
also has its own rights, which are entitled to respect and enforcement in the interest of fair
play. Out of its concern for those with less privilege in life, this Court has inclined more often
than not toward the employee and upheld his cause with his conflicts with the employer. Such
favorable treatment, however, has not blinded the Court to rule that justice is in every case for
the deserving. Justice should be dispensed in the light of the established facts and applicable
law and doctrine.[63]
WHEREFORE, the appealed Decision is AFFIRMED. No costs.
SO ORDERED.

RUBEN T. REYES
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

LEONARDO A. QUISUMBING MA. ALICIA AUSTRIA-MARTINEZ Associate Justice Associate

Justice

ADOLFO S. AZCUNA

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

Vice Associate Justice Minita V. Chico-Nazario. Justice Nazario is on official leave per Special Order No. 508 dated June 25, 2008.
Designated as additional member vice Associate Justice Antonio Eduardo B. Nachura per raffle dated June 25, 2008. Justice
Nachura participated as Solicitor General in the present case.
[1]
Rollo, pp. 122-128; Annex A. CA-G.R. SP No. 55528. Penned by Associate Justice Juan Q. Enriquez, Jr., with Associate Justices
Delilah Vidallon-Magtolis and Eliezer R. De Los Santos, concurring.
[2]
Id. at 170-182; Annex O. NLRC-CA 016627-98. Penned by Commissioner Alberto R. Quimpo, with Commissioners Rogelio I.
Rayala and Vicente S.E. Veloso, concurring.
[3]
Id. at 163-169; Annex N. NLRC-NCR Case No. 00-08-06073-97. Penned by Labor Arbiter Romulus S. Protasio.
[4]
Annex C.
[5]
United Retirement Plan, Art. V, Sec. 1(a).
[6]
Annex L.
[7]
Annex L-1.
[8]
Rollo, p. 169.
[9]
Id. at 168.
[10]
Id. at 168-169.
[11]
Id. at 169.
[12]
Id. at 181.
[13]
Id. at 179-180.
[14]
Id. at 178-179.
[15]
Id. at 126.
[16]
Id. at 127.
[17]
Id. at 126-127.
[18]
Id. at 11-120.
[19]
Id. at 438-568.
[20]
Id. at 456-458.
[21]
Brion v. South Philippine Union Mission of the Seventh Day Adventist Church, G.R. No. 135136, May 19, 1999, 307 SCRA 497,
504.
[22]
See Civil Code, Art. 1306.
[23]
165 US 578, 591.
[24]
246 US 357, 373, 374.
[25]
236 US 1, 10, 14.
[26]
208 US 161.
**

[27]

198 US 45, 49.

208 US 412, 421.
[29]
See Civil Code, Art. 1159; Pichel v. Alonzo, G.R. No. L-36902, January 30, 1982, 111 SCRA 341; De Cortes v. Venturanza, G.R.
No. L-26058, October 28, 1977, 79 SCRA 709; Villonco Realty Company v. Bormaheco, Inc., G.R. No. L-26872, July 25, 1975, 65
SCRA 352; Government v. Vaca, 64 Phil. 6 (1937); Government v. Lim, 61 Phil. 737 (1935); Government v. Conde, 61 Phil. 714
(1935); Hanlon v. Haussermann, 41 Phil. 276 (1920); Ollendorff v. Abrahamson, 38 Phil. 585 (1918); Compaia de Tabacos v.
Obed, 13 Phil. 391 (1909); De la Rama v. Inventor, 12 Phil. 44 (1908); Alcantara v. Alinea, 8 Phil. 111 (1907); Borromeo v. Franco, 5
Phil. 49 (1905); Salonga v. Concepcion, 3 Phil. 563 (1904); Co-Tiangco v. To-Jamco, 3 Phil. 210 (1908).
[30]
Id., Art. 1306.
[31]
Rollo, p. 131; United Retirement Plan, Art. II, Sec. 1(j). (Emphasis supplied.)
[32]
Id. at 179.
[33]
Civil Code, Art. 1370. See also RULES OF COURT, Rule 130, Secs. 10-19 on Interpretation of Documents.
[34]
Chinchilla v. Rafel, 39 Phil. 888 (1919); Escario v. Regis, 31 Phil. 618 (1915); De Lizardi v. Yaptico, 30 Phil. 211 (1915); Nolan v.
Majinay, 12 Phil. 559 (1909); Nolan v. Majinay, 12 Phil. 140 (1908); Palacios v. Municipality of Cavite, 12 Phil. 140
(1908); Azarraga v. Rodriguez, 9 Phil. 637 (1908); Alburo v. Villanueva, 7 Phil. 277 (1907).
[35]
17A Am. Jur. 2d 337, citing Binghamton Bridge, 70 US 51, 18 L. Ed. 137; South Hampton Co. v. Stinnes Corp., (CA5 Tex) 733 F.
2d 1108, 38 UCCRS 1137; Murray v. Kaiser Aluminum & Chemical Corp., (SD W Va) 591 F. Supp. 1550, affd without op. (CA4 W
Va) 767 F. 2d 912; Schulist v. Blue Cross of Iowa, (ND Ill) 553 F. Supp. 248, 4 EBC 1193, affd (CA7 Ill) 717 F. 2d 1127, 4 EBC
2237; P & S Business, Inc. v. South Cent. Bell Tel. Co., (Ala) 466 So. 2d 928; Estate of Wamack,(2nd Dist) 137 Cal. App. 2d 112, 289
P. 2d 871; BMW of North America, Inc. v. Krathen, (Fla App D4) 471 So. 2d 585, 10 FLW 1452, review den (Fla) 484 So. 2d 7, later
proceeding (Fla App D4) 510 So. 2d 366, 12 FLW 1857; Petroziello v. United States Leasing Corp., EOS Leasing Div., 176 Ga. App.
858, 338 SE 2d 63; Hanagami v. China Airlines, Ltd., 67 Hawaii 357, 688 P. 2d 1139; P. A. Bergner & Co. v. Lloyds Jewelers,
Inc., 112 Ill. 2d 196, 97 Ill. Dec. 415, 492 NE 2d 1288;Jenkins v. King, 224 Ind. 164, 65 NE 2d 121, 163 ALR 397; Scott v. Anderson
Newspapers, Inc., (Ind App) 477 NE 2d 553; Allen v. Highway Equipment Co., (Iowa) 239 NW 2d 135; General Motors Acceptance
Corp. v. Daniels, 303 Md. 254, 492 A. 2d 1306; Craig v. Bossenbery, 134 Mich. App. 543, 351 NW 2d 596; Kuhlman v. Educational
Publishers, 245 Minn. 171, 71 NW 2d 889; State by Crow Wing Environment Protection Asso. v. Breezy Point, (Minn App) 363 NW
2d 778, later app (Minn App) 394 NW 2d 592; Adams v. Kerr, (Mo App) 655 SW 2d 49; T.V. Transmission, Inc. v. Lincoln, 220 Neb.
887, 374 NW 2d 49; Parks v. Venters Oil Co., 255 NC 498, 121 SE 2d 850; Re Robinsons Will, 101 Vt. 464, 144 A. 457,
75 ALR 59; Ross v. Harding, 64 Wash. 2d 231, 391 P. 2d 526; Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 SE 2d
626, 17 OGR 583.
[36]
Id., citing Gulf Cities Gas Corp. v. Tangelo Park Service Co., (Fla App D4) 253 So. 2d 744; Sears, roebuck & Co. v.
Poling, 248 Iowa 582, 81 NW 2d 462; Gans v. Aetna Life Ins. Co., 214 NY 326, 108 NE 443; General American Indem. Co.v.
Pepper, 161 Tex. 263, 339 SW 2d 660; Griffin v. Fairmont Coal Co., 59 W. Va. 480, 53 SE 24.
[37]
Id., citing Massey-Ferguson v. Bent Equipment Co., (CA5 Fla) 283 F. 2d 12, 3 FR Serv. 2d 135; Atlas Sewing Center, Inc. v. Belks
Dept. Store, Inc., (Fla App D2) 162 So. 2d 274; Coopersmith v. Isherwood, 219 Md. 455, 150 A. 2d 243;Shapleigh Hardware Co. v.
Spiro, 141 Miss. 38, 106 So. 209, 44 ALR 393, later app 153 Miss. 81, 118 So. 429, motion overr 153 Miss. 195, 119 So. 206; Wood
v. Security Mut. Life Ins. Co., 112 Neb. 66, 198 NW 537, 34 ALR 712; Republic Nat. Life Ins. Co. v. Spillars, (Tex) 368 SW 2d 92,
5 ALR 3d 957.
[38]
CJC Trading, Inc. v. National Labor Relations Commission, G.R. No. 115884, July 20, 19995, 246 SCRA 724; Oro Enterprises v.
National Labor Relations Commission, G.R. No. 110861, November 14, 1994, 238 SCRA 105.
[39]
G.R. No. 82895, November 7, 1989, 179 SCRA 175.
[40]
Article 287. Retirement. Any employee may be retired upon reaching the age established in the Collective Bargaining Agreement
or other applicable employment contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and
any collective bargaining or other agreement.
[41]
Section 13. Retirement. In the absence of any collective bargaining agreement or other applicable agreement concerning terms and
conditions of employment which provides for retirement at an older age, an employee may be retired upon reaching the age of sixty
(60) years.
Section 14. Retirement Benefits. (a) An employee who is retired pursuant to a bona-fide retirement plan or in accordance with the
applicable individual or collective agreement or established employer policy shall be entitled to all the retirement benefits provided
therein or to termination pay equivalent at least to one-half month salary for every year of service, whichever is higher, a fraction of at
least six (6) months being considered as one whole year.
(b) Where both the employer and the employee contribute to the retirement plan, agreement or policy, the employers total contribution
thereto shall not be less than the total termination pay to which the employee would have been entitled had there been no retirement
fund. In case the employers contribution is less than the termination pay the employee is entitled to receive, the employer shall pay the
deficiency upon the retirement of the employee.
(c) This Section shall apply where the employee retires at the age of sixty (60) years or older. (Rules to Implement the Labor Code,
Book VI, Rule I, Sec. 14.)
[42]
Llora Motors, Inc. v. Drilon, supra note 39, at 181-187.
[43]
G.R. No. 110861, November 14, 1994, 238 SCRA 105.
[44]
Oro Enterprises, Inc. v. National Labor Relations Commission, id. at 112.
[45]
G.R. No. 95940, July 24, 1996, 259 SCRA 161.
[46]
Pantranco North Express, Inc. v. National Labor Relations Commission, id. at 173.
[47]
Id.
[48]
G.R. No. 135136, May 19, 1999, 307 SCRA 497.
[49]
Brion v. South Philippine Union Mission of the Seventh Day Adventist Church, id. at 504.
[50]
G.R. No. 90664, February 7, 1991, 193 SCRA 686.
[51]
Villena v. National Labor Relations Commission, id. at 693.
[52]
G.R. Nos. 78524 & 78739, January 20, 1989, 169 SCRA 328.
[53]
Planters Products, Inc. v. National Labor Relations Commission, id. at 339.
[54]
G.R. No. 141673, October 17, 2001, 367 SCRA 488.
[55]
Manuel L. Quezon University v. National Labor Relations Commission, id. at 494.
[56]
G.R. Nos. 50999-51000, March 23, 1990, 183 SCRA 610.
[57]
Article XIV. Retirement Gratuity.
Section 1(a). Any employee, who is separated from employment, due to old age, sickness, death or permanent lay-off not
due to the fault of said employee shall receive from the company a retirement gratuity in an amount equivalent to one (1)
months salary per year of service. One month of salary shall be deemed equivalent to the salary at date of retirement; years
of service shall be deemed equivalent to total service credits, a fraction of at least six months being considered as one year,
including probationary employment. (Songco v. National Labor Relations Commission, id. at 613, citing rollo, p. 71.)
[58]
Rollo, p. 180.
[59]
Id. at 432.
[28]

[60]

Supra note 48.

G.R. No. 106648, June 17, 1999, 308 SCRA 340.
[62]
Audion v. Electric Co., Inc. v. National Labor Relations Commission, id. at 355.
[63]
Revidad v. National Labor Relations Commission, G.R. No. 111105, June 27, 1995, 245 SCRA 356, 372-373, citing Mercury Drug
Corporation v. National Labor Relations Commission, G.R. No. 75662, September 15, 1989, 177 SCRA 580.
[61]

CONTINENTAL
MANUFACTURING
CORPORATION,

STEEL

G.R. No. 182836

Present:

Petitioner,

- versus -

CARPIO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,

HON. ACCREDITED VOLUNTARY

ARBITRATOR ALLAN S. MONTAO
and
NAGKAKAISANG
MANGGAGAWA NG CENTRO
STEEL CORPORATION-SOLIDARITY
OF UNIONS IN THE PHILIPPINES
FOR
EMPOWERMENT
AND
REFORMS (NMCSC-SUPER),

NACHURA, and
PERALTA, JJ.

Promulgated:

Respondents.

October 13, 2009

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

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court,
assailing the Decision[1] dated 27 February 2008 and the Resolution[2] dated 9 May 2008 of the
Court of Appeals in CA-G.R. SP No. 101697, affirming the Resolution[3] dated 20 November
2007 of respondent Accredited Voluntary Arbitrator Atty. Allan S. Montao (Montao) granting
bereavement leave and other death benefits to Rolando P. Hortillano (Hortillano), grounded
on the death of his unborn child.

The antecedent facts of the case are as follows:

Hortillano, an employee of petitioner Continental Steel Manufacturing Corporation

(Continental Steel) and a member of respondent Nagkakaisang Manggagawa ng Centro Steel
Corporation-Solidarity of Trade Unions in the Philippines for Empowerment and Reforms
(Union) filed on 9 January 2006, a claim for Paternity Leave, Bereavement Leave and Death
and Accident Insurance for dependent, pursuant to the Collective Bargaining Agreement (CBA)
concluded between Continental and the Union, which reads:

ARTICLE X: LEAVE OF ABSENCE

xxxx

Section 2. BEREAVEMENT LEAVEThe Company agrees to grant a bereavement leave with pay to
any employee in case of death of the employees legitimate dependent (parents, spouse, children,
brothers and sisters) based on the following:

2.1 Within Metro Manila up to Marilao, Bulacan - 7 days

2.2 Provincial/Outside Metro Manila - 11 days

xxxx

ARTICLE XVIII: OTHER BENEFITS

xxxx

Section 4. DEATH AND ACCIDENT INSURANCEThe Company shall grant death and accidental
insurance to the employee or his family in the following manner:

xxxx

4.3 DEPENDENTSEleven Thousand Five Hundred Fifty Pesos (Php11,550.00) in case of death of
the employees legitimate dependents (parents, spouse, and children). In case the employee is single,
this benefit covers the legitimate parents, brothers and sisters only with proper legal document to be
presented (e.g. death certificate).[4]

The claim was based on the death of Hortillanos unborn child. Hortillanos wife, Marife
V. Hortillano, had a premature delivery on 5 January 2006 while she was in the 38thweek of
pregnancy.[5] According to the Certificate of Fetal Death dated 7 January 2006, the female
fetus died during labor due to fetal Anoxia secondary to uteroplacental insufficiency.[6]

Continental Steel immediately granted Hortillanos claim for paternity leave but denied
his claims for bereavement leave and other death benefits, consisting of the death and
accident insurance.[7]

Seeking the reversal of the denial by Continental Steel of Hortillanos claims for
bereavement and other death benefits, the Union resorted to the grievance machinery
provided in the CBA. Despite the series of conferences held, the parties still failed to settle
their dispute,[8] prompting the Union to file a Notice to Arbitrate before the National
Conciliation and Mediation Board (NCMB) of the Department of Labor and Employment
(DOLE), National Capital Region (NCR).[9] In a Submission Agreement dated 9 October 2006,
the Union and Continental Steel submitted for voluntary arbitration the sole issue of whether
Hortillano was entitled to bereavement leave and other death benefits pursuant to Article X,
Section 2

and Article XVIII, Section 4.3 of the CBA.[10] The parties mutually chose Atty. Montao, an
Accredited Voluntary Arbitrator, to resolve said issue.[11]

When the preliminary conferences again proved futile in amicably settling the dispute,
the parties proceeded to submit their respective Position Papers, [12] Replies,[13]and
Rejoinders[14] to Atty. Montao.

The Union argued that Hortillano was entitled to bereavement leave and other death
benefits pursuant to the CBA. The Union maintained that Article X, Section 2 and Article XVIII,
Section 4.3 of the CBA did not specifically state that the dependent should have first been
born alive or must have acquired juridical personality so that his/her subsequent death could
be covered by the CBA death benefits. The Union cited cases wherein employees of MKK Steel
Corporation (MKK Steel) and Mayer Steel Pipe Corporation (Mayer Steel), sister companies of
Continental Steel, in similar situations as Hortillano were able to receive death benefits under
similar provisions of their CBAs.

The Union mentioned in particular the case of Steve L. Dugan (Dugan), an employee of
Mayer Steel, whose wife also prematurely delivered a fetus, which had already died prior to
the delivery. Dugan was able to receive paternity leave, bereavement leave, and voluntary
contribution under the CBA between his union and Mayer Steel.[15]Dugans child was only 24
weeks in the womb and died before labor, as opposed to Hortillanos child who was already 3738 weeks in the womb and only died during labor.

The Union called attention to the fact that MKK Steel and Mayer Steel are located in the
same compound as Continental Steel; and the representatives of MKK Steel and Mayer Steel
who signed the CBA with their respective employees unions were the same as the
representatives of Continental Steel who signed the existing CBA with the Union.

Finally, the Union invoked Article 1702 of the Civil Code, which provides that all doubts
in labor legislations and labor contracts shall be construed in favor of the safety of and decent
living for the laborer.

On the other hand, Continental Steel posited that the express provision of the CBA did
not contemplate the death of an unborn child, a fetus, without legal personality. It claimed
that there are two elements for the entitlement to the benefits, namely: (1) death and (2)
status as legitimate dependent, none of which existed in Hortillanos case.Continental Steel,
relying on Articles 40, 41 and 42[16] of the Civil Code, contended that only one with civil
personality could die. Hence, the unborn child never died because it never acquired juridical
personality. Proceeding from the same line of thought, Continental Steel reasoned that a fetus
that was dead from the moment of delivery was not a person at all. Hence, the
term dependent could not be applied to a fetus that never acquired juridical personality. A
fetus that was delivered dead could not be considered adependent, since it never needed any
support, nor did it ever acquire the right to be supported.

Continental Steel maintained that the wording of the CBA was clear and
unambiguous. Since neither of the parties qualified the terms used in the CBA, the legally
accepted definitions thereof were deemed automatically accepted by both parties. The failure
of the Union to have unborn child included in the definition of dependent, as used in the CBA
the death of whom would have qualified the parent-employee for bereavement leave and
other death benefits bound the Union to the legally accepted definition of the latter term.

Continental Steel, lastly, averred that similar cases involving the employees of its sister
companies, MKK Steel and Mayer Steel, referred to by the Union, were irrelevant and
incompetent evidence, given the separate and distinct personalities of the companies. Neither
could the Union sustain its claim that the grant of bereavement leave and other death benefits
to the parent-employee for the loss of an unborn child constituted company practice.

On 20 November 2007, Atty. Montao, the appointed Accredited Voluntary Arbitrator,

issued a Resolution[17] ruling that Hortillano was entitled to bereavement leave with pay and
death benefits.

Atty. Montao identified the elements for entitlement to said benefits, thus:

This Office declares that for the entitlement of the benefit of bereavement leave with pay by the
covered employees as provided under Article X, Section 2 of the parties CBA, three (3) indispensable
elements must be present: (1) there is death; (2) such death must be of employees dependent; and (3)
such dependent must be legitimate.

On the otherhand, for the entitlement to benefit for death and accident insurance as provided
under Article XVIII, Section 4, paragraph (4.3) of the parties CBA, four (4) indispensable elements must
be present: (a) there is death; (b) such death must be of employees dependent; (c) such dependent
must be legitimate; and (d) proper legal document to be presented.[18]

Atty. Montao found that there was no dispute that the death of an employees
legitimate dependent occurred. The fetus had the right to be supported by the parents from
the very moment he/she was conceived. The fetus had to rely on another for support; he/she
could not have existed or sustained himself/herself without the power or aid of someone else,
specifically, his/her mother. Therefore, the fetus was already a dependent, although he/she
died during the labor or delivery. There was also no question that Hortillano and his wife were
lawfully married, making their dependent, unborn child, legitimate.

In the end, Atty. Montao decreed:

WHEREFORE, premises considered, a resolution is hereby rendered ORDERING [herein

petitioner Continental Steel] to pay Rolando P. Hortillano the amount of Four Thousand Nine Hundred
Thirty-Nine Pesos (P4,939.00), representing his bereavement leave pay and the amount of Eleven
Thousand Five Hundred Fifty Pesos (P11,550.00) representing death benefits, or a total amount
of P16,489.00

The complaint against Manuel Sy, however, is ORDERED DISMISSED for lack of merit.

All other claims are DISMISSED for lack of merit.

Further, parties are hereby ORDERED to faithfully abide with the herein dispositions.

Aggrieved, Continental Steel filed with the Court of Appeals a Petition for Review
on Certiorari,[19] under Section 1, Rule 43 of the Rules of Court, docketed as CA-G.R. SP No.
101697.

Continental Steel claimed that Atty. Montao erred in granting Hortillanos claims for
bereavement leave with pay and other death benefits because no death of an
employees dependent had occurred. The death of a fetus, at whatever stage of pregnancy, was
excluded from the coverage of the CBA since what was contemplated by the CBA was the
death of a legal person, and not that of a fetus, which did not acquire any juridical
personality. Continental Steel pointed out that its contention was bolstered by the fact that
the term death was qualified by the phrase legitimate dependent. It asserted that the status of
a child could only be determined upon said childs birth, otherwise, no such appellation can be
had. Hence, the conditions sine qua non for Hortillanos entitlement to bereavement leave and
other death benefits under the CBA were lacking.

The Court of Appeals, in its Decision dated 27 February 2008, affirmed Atty. Montaos
Resolution dated 20 November 2007. The appellate court interpreted death to mean as
follows:

[Herein petitioner Continental Steels] exposition on the legal sense in which the term death is
used in the CBA fails to impress the Court, and the same is irrelevant for ascertaining the purpose, which
the grant of bereavement leave and death benefits thereunder, is intended to serve. While there is no
arguing with [Continental Steel] that the acquisition of civil personality of a child or fetus is conditioned
on being born alive upon delivery, it does not follow that such event of premature delivery of a fetus
could never be contemplated as a death as to be covered by the CBA provision, undoubtedly an event
causing loss and grief to the affected employee, with whom the dead fetus stands in a legitimate
relation. [Continental Steel] has proposed a narrow and technical significance to the term death of a
legitimate dependent as condition for granting bereavement leave and death benefits under the CBA.
Following [Continental Steels] theory, there can be no experience of death to speak of. The Court,
however, does not share this view. A dead fetus simply cannot be equated with anything less than loss
of human life, especially for the expectant parents. In this light, bereavement leave and death benefits
are meant to assuage the employee and the latters immediate family, extend to them solace and
support, rather than an act conferring legal status or personality upon the unborn child. [Continental
Steels] insistence that the certificate of fetal death is for statistical purposes only sadly misses this
crucial point.[20]

Accordingly, the fallo of the 27 February 2008 Decision of the Court of Appeals reads:

WHEREFORE, premises considered, the present petition is hereby DENIED for lack of merit. The
assailed Resolution dated November 20, 2007 of Accredited Voluntary Arbitrator Atty. Allan S. Montao is
hereby AFFIRMED and UPHELD.

With costs against [herein petitioner Continental Steel].[21]

In a Resolution[22] dated 9 May 2008, the Court of Appeals denied the Motion for
Reconsideration[23] of Continental Steel.

Hence, this Petition, in which Continental Steel persistently argues that the CBA is clear and
unambiguous, so that the literal and legal meaning of death should be applied. Only one with
juridical personality can die and a dead fetus never acquired a juridical personality.

We are not persuaded.

As Atty. Montao identified, the elements for bereavement leave under Article X, Section 2 of
the CBA are: (1) death; (2) the death must be of a dependent, i.e., parent, spouse, child,
brother, or sister, of an employee; and (3) legitimate relations of the dependent to the
employee. The requisites for death and accident insurance under Article XVIII, Section 4(3) of
the CBA are: (1) death; (2) the death must be of a dependent, who could be a parent, spouse,
or child of a married employee; or a parent, brother, or sister of a single employee; and (4)
presentation of the proper legal document to prove such death, e.g., death certificate.

It is worthy to note that despite the repeated assertion of Continental Steel that the
provisions of the CBA are clear and unambiguous, its fundamental argument for denying

Hortillanos claim for bereavement leave and other death benefits rests on the purportedly
proper interpretation of the terms death and dependent as used in the CBA. If the provisions
of the CBA are indeed clear and unambiguous, then there is no need to resort to the
interpretation or construction of the same. Moreover, Continental Steel itself admitted that
neither management nor the Union sought to define the pertinent terms for bereavement
leave and other death benefits during the negotiation of the CBA.
The reliance of Continental Steel on Articles 40, 41 and 42 of the Civil Code for the legal
definition of death is misplaced. Article 40 provides that a conceived child acquires personality
only when it is born, and Article 41 defines when a child is considered born. Article 42 plainly
states that civil personality is extinguished by death.

First, the issue of civil personality is not relevant herein. Articles 40, 41 and 42 of the
Civil Code on natural persons, must be applied in relation to Article 37 of the same Code, the
very first of the general provisions on civil personality, which reads:

Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in
every natural person and is lost only through death. Capacity to act, which is the power to do acts with
legal effect, is acquired and may be lost.

We need not establish civil personality of the unborn child herein since his/her juridical
capacity and capacity to act as a person are not in issue. It is not a question before us whether
the unborn child acquired any rights or incurred any obligations prior to his/her death that
were passed on to or assumed by the childs parents. The rights to bereavement leave and
other death benefits in the instant case pertain directly to the parents of the unborn child
upon the latters death.

Second, Sections 40, 41 and 42 of the Civil Code do not provide at all a definition
of death. Moreover, while the Civil Code expressly provides that civil personality may be
extinguished by death, it does not explicitly state that only those who have acquired juridical
personality could die.

And third, death has been defined as the cessation of life.[24] Life is not synonymous with civil
personality. One need not acquire civil personality first before he/she could die.Even a child
inside the womb already has life. No less than the Constitution recognizes the life of the
unborn from conception,[25] that the State must protect equally with the life of the mother. If
the unborn already has life, then the cessation thereof even prior to the child being delivered,
qualifies as death.

Likewise, the unborn child can be considered a dependent under the CBA. As Continental Steel
itself defines, a dependent is one who relies on another for support; one not able to exist or
sustain oneself without the power or aid of someone else. Under said general
definition,[26] even an unborn child is a dependent of its parents. Hortillanos child could not
have reached 38-39 weeks of its gestational life without depending upon its mother,
Hortillanos wife, for sustenance. Additionally, it is explicit in the CBA provisions in question
that the dependent may be the parent, spouse, or child of a married employee; or the parent,
brother, or sister of a single employee. The CBA did not provide a qualification for the child

dependent, such that the child must have been born or must have acquired civil personality, as
Continental Steel avers. Without such qualification, thenchild shall be understood in its more
general sense, which includes the unborn fetus in the mothers womb.

The term legitimate merely addresses the dependent childs status in relation to his/her
parents. In Angeles v. Maglaya,[27] we have expounded on who is a legitimate child,viz:
A legitimate child is a product of, and, therefore, implies a valid and lawful marriage. Remove
the element of lawful union and there is strictly no legitimate filiation between parents and child.
Article 164 of the Family Code cannot be more emphatic on the matter: Children conceived or
born during the marriage of the parents are legitimate. (Emphasis ours.)

Conversely, in Briones v. Miguel,[28] we identified an illegitimate child to be as

follows:
The fine distinctions among the various types of illegitimate children have been
eliminated in the Family Code. Now, there are only two classes of children -- legitimate (and
those who, like the legally adopted, have the rights of legitimate children) and illegitimate. All
children conceived and born outside a valid marriage are illegitimate, unless the law itself gives
them legitimate status. (Emphasis ours.)

It is apparent that according to the Family Code and the afore-cited jurisprudence, the
legitimacy or illegitimacy of a child attaches upon his/her conception. In the present case, it
was not disputed that Hortillano and his wife were validly married and that their child was
conceived during said marriage, hence, making said child legitimate upon her conception.

Also incontestable is the fact that Hortillano was able to comply with the fourth element
entitling him to death and accident insurance under the CBA, i.e., presentation of the death
certificate of his unborn child.

Given the existence of all the requisites for bereavement leave and other death benefits under
the CBA, Hortillanos claims for the same should have been granted by Continental Steel.

We emphasize that bereavement leave and other death benefits are granted to an employee
to give aid to, and if possible, lessen the grief of, the said employee and his family who
suffered the loss of a loved one. It cannot be said that the parents grief and sense of loss
arising from the death of their unborn child, who, in this case, had a gestational life of 38-39
weeks but died during delivery, is any less than that of parents whose child was born alive but
died subsequently.

Being for the benefit of the employee, CBA provisions on bereavement leave and other death
benefits should be interpreted liberally to give life to the intentions thereof. Time and again,
the Labor Code is specific in enunciating that in case of doubt in the interpretation of any law
or provision affecting labor, such should be interpreted in favor of labor. [29] In the same way,
the CBA and CBA provisions should be interpreted in favor of labor. In Marcopper Mining v.
National Labor Relations Commission,[30] we pronounced:

Finally, petitioner misinterprets the declaration of the Labor Arbiter in the assailed
decision that "when the pendulum of judgment swings to and fro and the forces are equal on both
sides, the same must be stilled in favor of labor." While petitioner acknowledges that all doubts
in the interpretation of the Labor Code shall be resolved in favor of labor, it insists that what is
involved-here is the amended CBA which is essentially a contract between private persons. What
petitioner has lost sight of is the avowed policy of the State, enshrined in our Constitution, to
accord utmost protection and justice to labor, a policy, we are, likewise, sworn to uphold.
In Philippine Telegraph & Telephone Corporation v. NLRC [183 SCRA 451 (1990)], we
categorically stated that:

When conflicting interests of labor and capital are to be weighed on the scales
of social justice, the heavier influence of the latter should be counter-balanced by
sympathy and compassion the law must accord the underprivileged worker.

Likewise, in Terminal Facilities and Services Corporation v. NLRC [199 SCRA 265 (1991)], we
declared:

Any doubt concerning the rights of labor should be resolved in its favor pursuant
to the social justice policy.

IN VIEW WHEREOF, the Petition is DENIED. The Decision dated 27 February 2008 and
Resolution dated 9 May 2008 of the Court of Appeals in CA-G.R. SP No. 101697, affirming the
Resolution dated 20 November 2007 of Accredited Voluntary Arbitrator Atty. Allan S. Montao,
which granted to Rolando P. Hortillano bereavement leave pay and other death benefits in the
amounts of Four Thousand Nine Hundred Thirty-Nine Pesos (P4,939.00) and Eleven Thousand
Five Hundred Fifty Pesos (P11,550.00), respectively, grounded on the death of his unborn
child, are AFFIRMED. Costs against Continental Steel Manufacturing Corporation.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

DIOSDADO M. PERALTA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Acting Chief Justice

[1]

Penned by Associate Justice Martin S. Villarama, Jr. with Associate Justices Noel G. Tijam and Sesinando E. Villon
concurring; rollo, pp. 32-40.
[2]
Id. at 42.
[3]
Penned by Atty. Allan S. Montao, Accredited Voluntary Arbitrator; records, pp. 381-392.
[4]
CA rollo, p. 26.
[5]
Rollo, pp. 84-92.
[6]
Id. at 93.
[7]
Id. at 86.
[8]
Id. at 33.
[9]
CA rollo, p. 60.
[10]
Id. at 67.
[11]
Id. at 46.
[12]
Id. at 25.
[13]
Id. at 62-65.
[14]
Id at 66-72.
[15]
Records, pp. 46-53.
[16]
Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the following article.

Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mothers womb.
However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four
hours after its complete delivery from the maternal womb.
Article 42. Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined
by law, by contract and by will.
[17]
CA rollo, pp. 24-34.
[18]
Id. at 32.
[19]
Id. at 2-18.
Art. 262-A of the Labor Code as amended in relation to Section 7, Rule XIX of Department Order No. 40-03 series of 2003
provides that the decision, order, resolution or award of the Voluntary Arbitrator shall be final and executory after ten (10)
calendar days from receipt of the copy of the award or decision by the parties and that it shall not be subject of a motion for
reconsideration.
[20]

Rollo, pp. 38-39.

Id. at 39.
[22]
Id. at 153.
[23]
Id. at 136-143.
[24]
Blacks Law Dictionary
[25]
Article II, Section 12 of the Constitution reads in full:
Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.
[26]
As opposed to the more limited or precise definition of a dependent child for income tax purposes, which means a legitimate,
illegitimate or legally adopted child chiefly dependent upon and living with the taxpayer if such dependent is not more than
twenty-one (21) years of age, unmarried and not gainfully employed or if such dependent, regardless of age, is incapable of
self-support because of mental or physical defect.
[27]
G.R. No. 153798, 2 September 2005, 469 SCRA 363, 369.
[28]
483 Phil. 483, 491 (2004).
[21]

[29]

Faculty Association of Mapua Institute of Technology (FAMIT) v. Court of Appeals, G.R. No. 164060, 15 June 2007, 524 SCRA
709, 716.
[30]
325 Phil. 618, 634-635 (1996).

U.S. Supreme Court

Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Pierce v. Society of Sisters
Nos. 583, 584
Argued March 16, 17, 1925
Decided June 1, 1925
268 U.S. 510
APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF OREGON
Syllabus
1. The fundamental theory of liberty upon which all governments of this Union rest excludes any
general power of the State to standardize its children by forcing them to accept instruction from public
teachers only. P. 268 U. S. 535.
2. The Oregon Compulsory Education Act (Oreg. Ls., 5259) which, with certain exemptions,
requires every parent, guardian or other person having control of a child between the ages of eight
and sixteen years to send him to the public school in the district where he resides, for the period
during which the school is held for the current year, is an unreasonable interference with the liberty of
the parents and guardians to direct the upbringing of the children, and in that respect violates the
Fourteenth Amendment. P. 268 U. S. 534.
3. In a proper sense, it is true that corporations cannot claim for themselves the liberty guaranteed by
the Fourteenth Amendment, and, in general, no person in any business has such an interest in
possible customers as to enable him to restrain exercise of proper power by the State upon the
ground that he will be deprived of patronage;
4. But where corporations owning and conducting schools are threatened with destruction of their
business and property through the improper and unconstitutional compulsion exercised by this statute
upon parents and guardians, their interest is direct and immediate, and entitles them to protection by
injunction. Truax v. Raich, 239 U. S. 33. P. 268 U. S. 535.
5. The Act, being intended to have general application, cannot be construed in its application to such
corporations as an exercise of power to amend their charters. Berea College v. Kentucky, 211 U. S.
45. P. 268 U. S. 535.
6. Where the injury threatened by an unconstitutional statute is present and real before the statute is
to be effective, and will
Page 268 U. S. 511
become irreparable if relief be postponed to that time, a suit to restrain future enforcement of the
statute is not premature. P. 268 U. S. 536.
296 Fed. 928, affirmed.
APPEALS from decrees of the District Court granting preliminary injunctions restraining the Governor,
and other officials, of the State of Oregon from threatening or attempting to enforce an amendment to
the school law -- an initiative measure adopted by the people November 7, 1922, to become effective

in 1926 -- requiring parents and others having control of young children to send them to the primary
schools of the State. The plaintiffs were two Oregon corporations owning and conducting schools.
Page 268 U. S. 529
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
These appeals are from decrees, based upon undenied allegations, which granted preliminary orders
restraining
Page 268 U. S. 530
appellants from threatening or attempting to enforce the Compulsory Education Act * adopted
November 7, 1922, under the initiative provision of her Constitution by the voters of Oregon.
Jud.Code, 266. They present the same points of law; there are no controverted questions of fact.
Rights said to be guaranteed by the federal Constitution were specially set up, and appropriate
prayers asked for their protection.
The challenged Act, effective September 1, 1926, requires every parent, guardian or other person
having control or charge or custody of a child between eight and sixteen years to send him "to a
public school for the period of time a public school shall be held during the current year" in the district
where the child resides, and failure so to do is declared a misdemeanor. There are
Page 268 U. S. 531
exemptions not specially important here -- for children who are not normal, or who have completed he
eighth grade, or who reside at considerable distances from any public school, or whose parents or
guardians hold special permits from the County Superintendent. The manifest purpose is to compel
general attendance at public schools by normal children, between eight and sixteen, who have not
completed the eighth grade. And without doubt enforcement of the statute would seriously impair,
perhaps destroy, the profitable features of appellees' business and greatly diminish the value of their
property.
Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for
orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire
necessary real and personal
Page 268 U. S. 532
property. It has long devoted its property and effort to the secular and religious education and care of
children, and has acquired the valuable good will of many parents and guardians. It conducts
interdependent primary and high schools and junior colleges, and maintains orphanages for the
custody and control of children between eight and sixteen. In its primary schools, many children
between those ages are taught the subjects usually pursued in Oregon public schools during the first
eight years. Systematic religious instruction and moral training according to the tenets of the Roman
Catholic Church are also regularly provided. All courses of study, both temporal and religious,
contemplate continuity of training under appellee's charge; the primary schools are essential to the
system and the most profitable. It owns valuable buildings, especially constructed and equipped for
school purposes. The business is remunerative -- the annual income from primary schools exceeds
thirty thousand dollars -- and the successful conduct of this requires long-time contracts with teachers
and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its
schools of children who would otherwise continue, and their income has steadily declined. The
appellants, public officers, have proclaimed their purpose strictly to enforce the statute.
After setting out the above facts, the Society's bill alleges that the enactment conflicts with the right of
parents to choose schools where their children will receive appropriate mental and religious training,

the right of the child to influence the parents' choice of a school, the right of schools and teachers
therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution
and void. And, further, that, unless enforcement of the measure is enjoined the corporation's business
and property will suffer irreparable injury.
Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon,
engaged
Page 268 U. S. 533
in owning, operating and conducting for profit an elementary, college preparatory and military training
school for boys between the ages of five and twenty-one years. The average attendance is one
hundred, and the annual fees received for each student amount to some eight hundred dollars. The
elementary department is divided into eight grades, as in the public schools; the college preparatory
department has four grades, similar to those of the public high schools; the courses of study conform
to the requirements of the State Board of Education. Military instruction and training are also given,
under the supervision of an Army officer. It owns considerable real and personal property, some
useful only for school purposes. The business and incident good will are very valuable. In order to
conduct its affairs, long time contracts must be made for supplies, equipment, teachers and pupils.
Appellants, law officers of the State and County, have publicly announced that the Act of November
7, 1922, is valid, and have declared their intention to enforce it. By reason of the statute and threat of
enforcement, appellee's business is being destroyed and its property depreciated; parents and
guardians are refusing to make contracts for the future instruction of their sons, and some are being
withdrawn.
The Academy's bill states the foregoing facts and then alleges that the challenged Act contravenes
the corporation's rights guaranteed by the Fourteenth Amendment and that, unless appellants are
restrained from proclaiming its validity and threatening to enforce it, irreparable injury will result. The
prayer is for an appropriate injunction.
No answer was interposed in either cause, and, after proper notices, they were heard by three judges
(Jud.Code 266) on motions for preliminary injunctions upon the specifically alleged facts. The court
ruled that the Fourteenth Amendment guaranteed appellees against the
Page 268 U. S. 534
deprivation of their property without due process of law consequent upon the unlawful interference by
appellants with the free choice of patrons, present and prospective. It declared the right to conduct
schools was property, and that parents and guardians, as a part of their liberty, might direct the
education of children by selecting reputable teachers and places. Also, that these schools were not
unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive
them of patronage, and thereby destroy their owners' business and property. Finally, that the threats
to enforce the Act would continue to cause irreparable injury, and the suits were not premature.
No question is raised concerning the power of the State reasonably to regulate all schools, to inspect,
supervise and examine them, their teachers and pupils; to require that all children of proper age
attend some school, that teachers shall be of good moral character and patriotic disposition, that
certain studies plainly essential to good citizenship must be taught, and that nothing be taught which
is manifestly inimical to the public welfare.
The inevitable practical result of enforcing the Act under consideration would be destruction of
appellees' primary schools, and perhaps all other private primary schools for normal children within
the State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but
long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate
that they have failed to discharge their obligations to patrons, students or the State. And there are no

peculiar circumstances or present emergencies which demand extraordinary measures relative to

primary education.
Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely plain that the Act of 1922
unreasonably interferes with the liberty of parents and guardians to direct the upbringing and
education of children
Page 268 U. S. 535
under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not be
abridged by legislation which has no reasonable relation to some purpose within the competency of
the State. The fundamental theory of liberty upon which all governments in this Union repose
excludes any general power of the State to standardize its children by forcing them to accept
instruction from public teachers only. The child is not the mere creature of the State; those who
nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare
him for additional obligations.
Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty
which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is
true. Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243, 203 U. S. 255; Western Turf Association v.
Greenberg, 204 U. S. 359, 204 U. S. 363. But they have business and property for which they claim
protection. These are threatened with destruction through the unwarranted compulsion which
appellants are exercising over present and prospective patrons of their schools. And this court has
gone very far to protect against loss threatened by such action. Truax v. Raich, 239 U. S. 33; Truax v.
Corrigan, 257 U. S. 312; Terrace v. Thompson, 263 U. S. 197.
The courts of the State have not construed the Act, and we must determine its meaning for ourselves.
Evidently it was expected to have general application, and cannot be construed as though merely
intended to amend the charters of certain private corporations, as in Berea College v. Kentucky, 211
U. S. 45. No argument in favor of such view has been advanced.
Generally it is entirely true, as urged by counsel, that no person in any business has such an interest
in possible customers as to enable him to restrain exercise of proper power of the State upon the
ground that he will be deprived
Page 268 U. S. 536
of patronage. But the injunctions here sought are not against the exercise of any proper power.
Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons
and the consequent destruction of their business and property. Their interest is clear and immediate,
within the rule approved in Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson, supra,and
many other cases where injunctions have issued to protect business enterprises against interference
with the freedom of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S.
229; Duplex Printing Press Co. v. Deering, 254 U. S. 443; American Steel Foundries v. Tri-City
Central Trades Council, 257 U. S. 184; Nebraska District v. McKelvie, 262 U. S. 404; Truax v.
Corrigan, supra, and cases there cited.
The suits were not premature. The injury to appellees was present and very real, not a mere
possibility in the remote future. If no relief had been possible prior to the effective date of the Act, the
injury would have become irreparable. Prevention of impending injury by unlawful action is a well
recognized function of courts of equity. The decrees below are
Affirmed.
*

"Be it Enacted by the People of the State of Oregon:"

"Section 1. That Section 5259, Oregon Laws, be and the same is hereby amended so as to read as
follows:"
"Sec. 5259. Children Between the Ages of Eight and Sixteen Years -- Any parent, guardian or other
person in the State of Oregon, having control or charge or custody of a child under the age of sixteen
years and of the age of eight years or over at the commencement of a term of public school of the
district in which said child resides, who shall fail or neglect or refuse to send such child to a public
school for the period of time a public school shall be held during the current year in said district, shall
be guilty of a misdemeanor and each day's failure to send such child to a public school shall
constitute a separate offense; provided, that, in the following cases, children shall not be required to
attend public schools:"
"(a) Children Physically Unable -- Any child who is abnormal, subnormal or physically unable to
attend school."
"(b) Children Who Have Completed the Eighth Grade -- Any child who has completed the eighth
grade, in accordance with the provisions of the state course of study."
"(c) Distance from school -- Children between the ages of eight and ten years, inclusive, whose place
of residence is more than one and one-half miles, and children over ten years of age whose place of
residence is more than three miles, by the nearest traveled road, from public school; provided,
however, that, if transportation to and from school is furnished by the school district, this exemption
shall not apply."
"(d) Private Instruction -- Any child who is being taught for a like period of time by the parent or private
teacher such subjects as are usually taught in the first eight years in the public school; but before
such child can be taught by a parent or a private teacher, such parent or private teacher must receive
written permission from the county superintendent, and such permission shall not extend longer than
the end of the current school year. Such child must report to the county school superintendent or
some person designated by him at least once every three months and take an examination in the
work covered. If, after such examination, the county superintendent shall determine that such child is
not being properly taught, then the county superintendent shall order the parent, guardian or other
person, to send such child to the public school the remainder of the school year."
"If any parent, guardian or other person having control or charge or custody of any child between the
ages of eight and sixteen years shall fail to comply with any provision of this section, he shall be guilty
of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $5, nor more
than $100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both
such fine and imprisonment in the discretion of the court."
"This Act shall take effect and be and remain in force from and after the first day of September,
1926."

U.S. Supreme Court

Meyer v. Nebraska, 262 U.S. 390 (1923)
Meyer v. State of Nebraska
No. 325
Argued February 23, 1923
Decided June 4, 1923
262 U.S. 390
ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA
Syllabus
A state law forbidding, under penalty, the teaching in any private, denominational, parochial or public
school, of any modern language, other than English, to any child who has not attained and
successfully
Page 262 U. S. 391
passed the eighth grade, invades the liberty guaranteed by the Fourteenth Amendment and exceeds
the power of the State. P. 262 U. S. 399.
So held where the statute was applied in punishment of an instructor who taught reading in German,
to a child of ten years, in a parochial school.
107 Neb. 657, reversed.
ERROR to a judgment of the Supreme Court of Nebraska affirming a conviction for infraction of a
statute against teaching of foreign languages to young children in schools.
Page 262 U. S. 396
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Plaintiff in error was tried and convicted in the District Court for Hamilton County, Nebraska, under an
information which charged that, on May 25, 1920, while an instructor in Zion Parochial School, he
unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten
years, who had not attained
Page 262 U. S. 397
and successfully passed the eighth grade. The information is based upon "An act relating to the
teaching of foreign languages in the State of Nebraska," approved April 9, 1919, which follows [Laws
1919, c. 249.]:
"Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or
public school, teach any subject to any person in any language other than the English language."
"Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil
shall have attained and successfully passed the eighth grade as evidenced by a certificate of
graduation issued by the county superintendent of the county in which the child resides."
"Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a
misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25),

nor more than one hundred dollars ($100) or be confined in the county jail for any period not
exceeding thirty days for each offense."
"Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and
approval."
The Supreme Court of the State affirmed the judgment of conviction. 107 Neb. 657. It declared the
offense charged and established was "the direct and intentional teaching of the German language as
a distinct subject to a child who had not passed the eighth grade," in the parochial school maintained
by Zion Evangelical Lutheran Congregation, a collection of Biblical stories being used therefor. And it
held that the statute forbidding this did not conflict with the Fourteenth Amendment, but was a valid
exercise of the police power. The following excerpts from the opinion sufficiently indicate the reasons
advanced to support the conclusion.
"The salutary purpose of the statute is clear. The legislature had seen the baneful effects of permitting
foreigners,
Page 262 U. S. 398
who had taken residence in this country, to rear and educate their children in the language of their
native land. The result of that condition was found to be inimical to our own safety. To allow the
children of foreigners, who had emigrated here, to be taught from early childhood the language of the
country of their parents was to rear them with that language as their mother tongue. It was to educate
them so that they must always think in that language, and, as a consequence, naturally inculcate in
them the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was
intended not only to require that the education of all children be conducted in the English language,
but that, until they had grown into that language and until it had become a part of them, they should
not in the schools be taught any other language. The obvious purpose of this statute was that the
English language should be and become the mother tongue of all children reared in this state. The
enactment of such a statute comes reasonably within the police power of the state. Pohl v. State, 132
N.E. (Ohio) 20; State v. Bartels, 181 N.W. (Ia.) 508."
"It is suggested that the law is an unwarranted restriction, in that it applies to all citizens of the state
and arbitrarily interferes with the rights of citizens who are not of foreign ancestry, and prevents them,
without reason, from having their children taught foreign languages in school. That argument is not
well taken, for it assumes that every citizen finds himself restrained by the statute. The hours which a
child is able to devote to study in the confinement of school are limited. It must have ample time for
exercise or play. Its daily capacity for learning is comparatively small. A selection of subjects for its
education, therefore, from among the many that might be taught, is obviously necessary. The
legislature no doubt had in mind the practical operation of the law. The law affects few citizens,
except those of foreign lineage.
Page 262 U. S. 399
Other citizens, in their selection of studies, except perhaps in rare instances, have never deemed it of
importance to teach their children foreign languages before such children have reached the eighth
grade. In the legislative mind, the salutary effect of the statute no doubt outweighed the restriction
upon the citizens generally, which, it appears, was a restriction of no real consequence."
The problem for our determination is whether the statute, as construed and applied, unreasonably
infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. "No State shall .
. . deprive any person of life, liberty, or property, without due process of law."
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has
received much consideration and some of the included things have been definitely stated. Without

doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized at common law as essential to
the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36;Butchers' Union
Co. v. Crescent City Co., 111 U. S. 746; Yick Wo v. Hopkins, 118 U. S. 356; Minnesota v. Barber, 136
U. S. 313;Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Twining v. New
Jersey, 211 U. S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549; Truax v.
Raich, 239 U. S. 33; Adams v. Tanner, 244 U. S. 590; New York Life Ins. Co. v. Dodge, 246 U. S.
357; Truax v. Corrigan, 257 U. S. 312; Adkins v. Children's Hospital, 261 U. S. 525; Wyeth v.
Cambridge Board of Health, 200 Mass. 474. The established doctrine is that this liberty may not be
interfered
Page 262 U. S. 400
with, under the guise of protecting the public interest, by legislative action which is arbitrary or without
reasonable relation to some purpose within the competency of the State to effect. Determination by
the legislature of what constitutes proper exercise of police power is not final or conclusive, but is
subject to supervision by the courts. Lawton v. Steele, 152 U. S. 133, 152 U. S. 137.
The American people have always regarded education and acquisition of knowledge as matters of
supreme importance which should be diligently promoted. The Ordinance of 1787 declares,
"Religion, morality, and knowledge being necessary to good government and the happiness of
mankind, schools and the means of education shall forever be encouraged."
Corresponding to the right of control, it is the natural duty of the parent to give his children education
suitable to their station in life, and nearly all the States, including Nebraska, enforce this obligation by
compulsory laws.
Practically, education of the young is only possible in schools conducted by especially qualified
persons who devote themselves thereto. The calling always has been regarded as useful and
honorable, essential, indeed, to the public welfare. Mere knowledge of the German language cannot
reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and
desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to
teach and the right of parents to engage him so to instruct their children, we think, are within the
liberty of the Amendment.
The challenged statute forbids the teaching in school of any subject except in English; also the
teaching of any other language until the pupil has attained and successfully passed the eighth grade,
which is not usually accomplished before the age of twelve. The Supreme Court of the State has held
that "the so-called ancient or dead languages" are not "within the spirit or the purpose of
Page 262 U. S. 401
the act." Nebraska District of Evangelical Lutheran Synod v. McKelvie, 187 N.W. 927. Latin, Greek,
Hebrew are not proscribed; but German, French, Spanish, Italian and every other alien speech are
within the ban. Evidently the legislature has attempted materially to interfere with the calling of
modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power
of parents to control the education of their own.
It is said the purpose of the legislation was to promote civic development by inhibiting training and
education of the immature in foreign tongues and ideals before they could learn English and acquire
American ideals, and "that the English language should be and become the mother tongue of all
children reared in this State." It is also affirmed that the foreign born population is very large, that

certain communities commonly use foreign words, follow foreign leaders, move in a foreign
atmosphere, and that the children are thereby hindered from becoming citizens of the most useful
type, and the public safety is imperiled.
That the State may do much, go very far, indeed, in order to improve the quality of its citizens,
physically, mentally and morally, is clear; but the individual has certain fundamental rights which must
be respected. The protection of the Constitution extends to all, to those who speak other languages
as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all
had ready understanding of our ordinary speech, but this cannot be coerced by methods which
conflict with the Constitution -- a desirable end cannot be promoted by prohibited means.
For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:
"That the wives of our guardians are to be common, and their children are to be common, and no
parent is to know his own child,
Page 262 U. S. 402
nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen
or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the
offspring of the inferior, or of the better when they chance to be deformed, will be put away in some
mysterious, unknown place, as they should be."
In order to submerge the individual. and develop ideal citizens, Sparta assembled the males at seven
into barracks and intrusted their subsequent education and training to official guardians. Although
such measures have been deliberately approved by men of great genius, their ideas touching the
relation between individual and State were wholly different from those upon which our institutions
rest, and it hardly will be affirmed that any legislature could impose such restrictions upon the people
of a State without doing violence to both letter and spirit of the Constitution.
The desire of the legislature to foster a homogeneous people with American ideals prepared readily
to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences
during the late war and aversion toward every characteristic of truculent adversaries were certainly
enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the
power of the State and conflict with rights assured to plaintiff in error. The interference is plain
enough, and no adequate reason therefor in time of peace and domestic tranquility has been shown.
The power of the State to compel attendance at some school and to make reasonable regulations for
all schools, including a requirement that they shall give instructions in English, is not questioned. Nor
has challenge been made of the State's power to prescribe a curriculum for institutions which it
supports. Those matters are not within the present controversy. Our concern is with the prohibition
approved by the Supreme Court. Adams v.
Page 262 U. S. 403
Tanner, supra, p. 244 U. S. 594, pointed out that mere abuse incident to an occupation ordinarily
useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency
has arisen which renders knowledge by a child of some language other than English so clearly
harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We
are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to
any end within the competency of the State.
As the statute undertakes to interfere only with teaching which involves a modern language, leaving
complete freedom as to other matters, there seems no adequate foundation for the suggestion that
the purpose was to protect the child's health by limiting his mental activities. It is well known that

proficiency in a foreign language seldom comes to one not instructed at an early age, and experience
shows that this is not injurious to the health, morals or understanding of the ordinary child.
The judgment of the court below must be reversed, and the cause remanded for further proceedings
not inconsistent with this opinion.
Reversed. [See the separate opinion of MR. JUSTICE HOLMES, concurred in by MR. JUSTICE
SUTHERLAND, in the next case, at p.262 U. S. 412, infra.]

G.R. No. 182835

April 20, 2010

RUSTAN ANG y PASCUA, Petitioner,

vs.
THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents.
DECISION
ABAD, J.:
This case concerns a claim of commission of the crime of violence against women when a former boyfriend sent to
the girl the picture of a naked woman, not her, but with her face on it.
The Indictment
The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial Court (RTC) of
Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children Act or Republic Act (R.A.) 9262 in
an information that reads:
That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines and within the
jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, in a purposeful and
reckless conduct, sent through the Short Messaging Service (SMS) using his mobile phone, a pornographic picture
to one Irish Sagud, who was his former girlfriend, whereby the face of the latter was attached to a completely naked
body of another woman making it to appear that it was said Irish Sagud who is depicted in the said obscene and
pornographic picture thereby causing substantial emotional anguish, psychological distress and humiliation to the
said Irish Sagud.1
The Facts and the Case
The evidence for the prosecution shows that complainant Irish Sagud (Irish) and accused Rustan were classmates
at Wesleyan University in Aurora Province. Rustan courted Irish and they became "on-and-off" sweethearts towards
the end of 2004. When Irish learned afterwards that Rustan had taken a live-in partner (now his wife), whom he had
gotten pregnant, Irish broke up with him.
Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with him, saying
that he did not love the woman he was about to marry. Irish rejected the proposal and told Rustan to take on his
responsibility to the other woman and their child. Irish changed her cellphone number but Rustan somehow
managed to get hold of it and sent her text messages. Rustan used two cellphone numbers for sending his
messages, namely, 0920-4769301 and 0921-8084768. Irish replied to his text messages but it was to ask him to
leave her alone.
In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a picture of a naked
woman with spread legs and with Irishs face superimposed on the figure (Exhibit A).2 The senders cellphone
number, stated in the message, was 0921-8084768, one of the numbers that Rustan used. Irish surmised that he
copied the picture of her face from a shot he took when they were in Baguio in 2003 (Exhibit B).3
After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it would be easy for
him to create similarly scandalous pictures of her. And he threatened to spread the picture he sent through the
internet. One of the messages he sent to Irish, written in text messaging shorthand, read: "Madali lang ikalat yun,
my chatrum ang tarlac rayt pwede ring send sa lahat ng chatter."4
Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police supervision, Irish
contacted Rustan through the cellphone numbers he used in sending the picture and his text messages. Irish asked
Rustan to meet her at the Lorentess Resort in Brgy. Ramada, Maria Aurora, and he did. He came in a motorcycle.
After parking it, he walked towards Irish but the waiting police officers intercepted and arrested him. They searched
him and seized his Sony Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at
the police station, he shouted at Irish: "Malandi ka kasi!"
Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in information
technology and computer graphics. He said that it was very much possible for one to lift the face of a woman from a
picture and superimpose it on the body of another woman in another picture. Pictures can be manipulated and
enhanced by computer to make it appear that the face and the body belonged to just one person.
Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was not
proportionate to the body and the face had a lighter color. In his opinion, the picture was fake and the face on it had
been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained how this could be done, transferring a
picture from a computer to a cellphone like the Sony Ericsson P900 seized from Rustan.
For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003 and their relation
lasted until December of that year. He claimed that after their relation ended, Irish wanted reconciliation. They met in
December 2004 but, after he told her that his girlfriend at that time (later his wife) was already pregnant, Irish walked
out on him.

Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort as she needed
his help in selling her cellphone. When he arrived at the place, two police officers approached him, seized his
cellphone and the contents of his pockets, and brought him to the police station.
Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a prankster who
was sending her malicious text messages. Rustan got the senders number and, pretending to be Irish, contacted
the person. Rustan claims that he got back obscene messages from the prankster, which he forwarded to Irish from
his cellphone. This explained, he said, why the obscene messages appeared to have originated from his cellphone
number. Rustan claims that it was Irish herself who sent the obscene picture (Exhibit A) to him. He presented six
pictures of a woman whom he identified as Irish (Exhibits 2 to 7).5
Michelle Ang (Michelle), Rustans wife, testified that she was sure Irish sent the six pictures. Michelle claims that she
received the pictures and hid the memory card (Exhibit 8) that contained them because she was jealous and angry.
She did not want to see anything of Irish. But, while the woman in the pictures posed in sexy clothing, in none did
she appear naked as in Exhibit A. Further, the face of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish
denied that she was the woman in those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully
dressed.
After trial, the RTC found Irishs testimony completely credible, given in an honest and spontaneous manner. The
RTC observed that she wept while recounting her experience, prompting the court to comment: "Her tears were
tangible expression of pain and anguish for the acts of violence she suffered in the hands of her former sweetheart.
The crying of the victim during her testimony is evidence of the credibility of her charges with the verity borne out of
human nature and experience."6 Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the
violation of Section 5(h) of R.A. 9262.
On Rustans appeal to the Court of Appeals (CA),7 the latter rendered a decision dated January 31, 2008,8affirming
the RTC decision. The CA denied Rustans motion for reconsideration in a resolution dated April 25, 2008. Thus,
Rustan filed the present for review on certiorari.
The Issues Presented
The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message the picture with
her face pasted on the body of a nude woman, inflicting anguish, psychological distress, and humiliation on her in
violation of Section 5(h) of R.A. 9262.
The subordinate issues are:
1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is defined in R.A.
9262;
2. Whether or not a single act of harassment, like the sending of the nude picture in this case, already
constitutes a violation of Section 5(h) of R.A. 9262;
3. Whether or not the evidence used to convict Rustan was obtained from him in violation of his
constitutional rights; and
4. Whether or not the RTC properly admitted in evidence the obscene picture presented in the case.
The Courts Rulings
Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person against a
woman with whom he has or had a sexual or dating relationship. Thus:
SEC. 3. Definition of Terms. As used in this Act,
(a) "Violence against women and their children" refers to any act or a series of acts committed by any
person against a woman who is his wife, former wife, or against a woman with whom the person has or had
a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate
or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.
xxxx
Section 5 identifies the act or acts that constitute violence against women and these include any form of
harassment that causes substantial emotional or psychological distress to a woman. Thus:
SEC. 5. Acts of Violence Against Women and Their Children. The crime of violence against women and
their children is committed through any of the following acts:
xxxx

h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or
causes substantial emotional or psychological distress to the woman or her child. This shall include, but not
be limited to, the following acts:
xxxx
5. Engaging in any form of harassment or violence;
The above provisions, taken together, indicate that the elements of the crime of violence against women through
harassment are:
1. The offender has or had a sexual or dating relationship with the offended woman;
2. The offender, by himself or through another, commits an act or series of acts of harassment against the
woman; and
3. The harassment alarms or causes substantial emotional or psychological distress to her.
One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a "dating
relationship" with Irish. Section 3(e) provides that a "dating relationship" includes a situation where the parties are
romantically involved over time and on a continuing basis during the course of the relationship. Thus:
(e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of
marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A
casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating
relationship. (Underscoring supplied.)
Here, Rustan claims that, being "romantically involved," implies that the offender and the offended woman have or
had sexual relations. According to him, "romance" implies a sexual act. He cites Websters Comprehensive
Dictionary Encyclopedia Edition which provides a colloquial or informal meaning to the word "romance" used as a
verb, i.e., "to make love; to make love to" as in "He romanced her."
But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies a sexual act. It
did not say that the offender must have "romanced" the offended woman. Rather, it used the noun "romance" to
describe a couples relationship, i.e., "a love affair."9
R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of acts committed
by any person against a woman x x x with whom the person has or had a sexual or dating relationship." Clearly, the
law itself distinguishes a sexual relationship from a dating relationship. Indeed, Section 3(e) above defines "dating
relationship" while Section 3(f) defines "sexual relations." The latter "refers to a single sexual act which may or may
not result in the bearing of a common child." The dating relationship that the law contemplates can, therefore, exist
even without a sexual intercourse taking place between those involved.
Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety (away-bati), their
romance cannot be regarded as having developed "over time and on a continuing basis." But the two of them were
romantically involved, as Rustan himself admits, from October to December of 2003. That would be time enough for
nurturing a relationship of mutual trust and love.
An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking place does not
mean that the romantic relation between the two should be deemed broken up during periods of misunderstanding.
Explaining what "away-bati" meant, Irish explained that at times, when she could not reply to Rustans messages,
he would get angry at her. That was all. Indeed, she characterized their three-month romantic relation as
continuous.10
Two. Rustan argues that the one act of sending an offensive picture should not be considered a form of harassment.
He claims that such would unduly ruin him personally and set a very dangerous precedent. But Section 3(a) of R.A.
9262 punishes "any act or series of acts" that constitutes violence against women. This means that a single act of
harassment, which translates into violence, would be enough. The object of the law is to protect women and
children. Punishing only violence that is repeatedly committed would license isolated ones.
Rustan alleges that todays women, like Irish, are so used to obscene communications that her getting one could not
possibly have produced alarm in her or caused her substantial emotional or psychological distress. He claims
having previously exchanged obscene pictures with Irish such that she was already desensitized by them.
But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not impressed with their
claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It is doubtful if the woman in the
picture was Irish since her face did not clearly show on them.
Michelle, Rustans wife, claimed that she deleted several other pictures that Irish sent, except Exhibits 2 to 7. But
her testimony did not make sense. She said that she did not know that Exhibits 2 to 7 had remained saved after she
deleted the pictures. Later, however, she said that she did not have time to delete them.11 And, if she thought that
she had deleted all the pictures from the memory card, then she had no reason at all to keep and hide such memory
card. There would have been nothing to hide. Finally, if she knew that some pictures remained in the card, there

was no reason for her to keep it for several years, given that as she said she was too jealous to want to see
anything connected to Irish. Thus, the RTC was correct in not giving credence to her testimony.
1avv phi1

Secondly, the Court cannot measure the trauma that Irish experienced based on Rustans low regard for the alleged
moral sensibilities of todays youth. What is obscene and injurious to an offended woman can of course only be
determined based on the circumstances of each case. Here, the naked woman on the picture, her legs spread open
and bearing Irishs head and face, was clearly an obscene picture and, to Irish a revolting and offensive one. Surely,
any woman like Irish, who is not in the pornography trade, would be scandalized and pained if she sees herself in
such a picture. What makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat to post
it in the internet for all to see. That must have given her a nightmare.
Three. Rustan argues that, since he was arrested and certain items were seized from him without any warrant, the
evidence presented against him should be deemed inadmissible. But the fact is that the prosecution did not present
in evidence either the cellphone or the SIM cards that the police officers seized from him at the time of his arrest.
The prosecution did not need such items to prove its case. Exhibit C for the prosecution was but a photograph
depicting the Sony Ericsson P900 cellphone that was used, which cellphone Rustan admitted owning during the pretrial conference.
Actually, though, the bulk of the evidence against him consisted in Irishs testimony that she received the obscene
picture and malicious text messages that the senders cellphone numbers belonged to Rustan with whom she had
been previously in communication. Indeed, to prove that the cellphone numbers belonged to Rustan, Irish and the
police used such numbers to summon him to come to Lorentess Resort and he did.12 Consequently, the prosecution
did not have to present the confiscated cellphone and SIM cards to prove that Rustan sent those messages.
Moreover, Rustan admitted having sent the malicious text messages to Irish.13 His defense was that he himself
received those messages from an unidentified person who was harassing Irish and he merely forwarded the same
to her, using his cellphone. But Rustan never presented the cellphone number of the unidentified person who sent
the messages to him to authenticate the same. The RTC did not give credence to such version and neither will this
Court. Besides, it was most unlikely for Irish to pin the things on Rustan if he had merely tried to help her identify the
sender.
Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic
document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule
5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).
But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time
before this Court. The objection is too late since he should have objected to the admission of the picture on such
ground at the time it was offered in evidence. He should be deemed to have already waived such ground for
objection.14
Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies
only to civil actions, quasi-judicial proceedings, and administrative proceedings.15
In conclusion, this Court finds that the prosecution has proved each and every element of the crime charged beyond
reasonable doubt.
WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in CA-G.R. CR
30567 dated January 31, 2008 and its resolution dated April 25, 2008.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice

ARTURO D. BRION
Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
*

Designated as additional member in lieu of Associate Justice Mariano C. Del Castillo, per raffle dated
September 14, 2009.
1

Docketed as Criminal Case 3493.

Records, p. 69.

Id. at 70.

Exhibit D and sub-markings, id. at 72-76.

Id. at 156-159.

Rollo, p. 38.

Docketed as CA-G.R. CR 30567.

Penned by then Associate Justice Mariano C. Del Castillo (now a member of this Court), and concurred in
by Associate Justices Arcangelita Romilla-Lontok and Romeo F. Barza.
9

Websters New World College Dictionary, Third Edition, p. 1164.

10

TSN, April 11, 2006, pp. 22-24.

11

TSN, July 19, 2006, pp. 10-12.

12

TSN, April 11, 2006, p. 28.

13

TSN, June 27, 2006, pp. 23-24.

14

People v. Mendoza, G.R. No. 180501, December 24, 2008, 575 SCRA 616, 625-626.

15

A.M. No. 01-7-01-SC, Rule 1, Section 2.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by
their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES,
minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V.
PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor,
represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA,
minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN,
all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO
and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their
parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and
IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA,
PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their
parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of
the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of
the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional
plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized
for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural
resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department
of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable
Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as
a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and
entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests."
The same was filed for themselves and others who are equally concerned about the preservation of said resource but are
"so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they
"represent their generation as well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber
license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area
of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare
and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical
pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured
and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful
ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover
and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies,

such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as
of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c)
massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil
eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the entire
island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna,
(e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous
cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading
to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by
the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the
siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of
supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so
capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic
and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of
said rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for
commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per
hour nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of
forest resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff
adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest
stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors and
their successors who may never see, use, benefit from and enjoy this rare and unique natural
resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource
property he holds in trust for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are
entitled to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2,
1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious
damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights
of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare,

barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had
been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy
of the State
(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and wellbeing. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory
to the Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and
efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article
XIV,id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the natural law and
violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to
arrest the unabated hemorrhage of the country's vital life support systems and continued rape of
Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on
two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In
their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it
involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said
order, not only was the defendant's claim that the complaint states no cause of action against him and that it raises a
political question sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in
the impairment of contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask
this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but
have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.)
No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the
people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept
of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely
on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber
License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that
the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may
be considered protected by the said clause, it is well settled that they may still be revoked by the State when the
public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid
cause of action. They then reiterate the theory that the question of whether logging should be permitted in the
country is a political question which should be properly addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before
Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State
without due process of law. Once issued, a TLA remains effective for a certain period of time usually for twentyfive (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing
would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90777 as a class suit. The original defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of
common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties
are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the
Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an
incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their generation
as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced
and healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless
to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations
to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues
raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell
short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and
protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC).
Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint
against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color
and involving a matter of public policy, may not be taken cognizance of by this Court without doing
violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored
(sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a
specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology
which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section
16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the same
article:
Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of
its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come generations which stand to inherit nothing
but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries
with it the correlative duty of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the country's
forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the
other related provisions of the Constitution concerning the conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government
agency responsible for the conservation, management, development and proper use of the country's environment and
natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided
for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country's forest,
mineral, land, off-shore areas and other natural resources, including the protection and
enhancement of the quality of the environment, and equitable access of the different segments of
the population to the development and the use of the country's natural resources, not only for the
present generation but for future generations as well. It is also the policy of the state to recognize
and apply a true value system including social and environmental cost implications relative to their
utilization, development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15specifically
in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the
full exploration and development as well as the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources, consistent with the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment and the objective of making the
exploration, development and utilization of such natural resources equitably accessible to the
different segments of the present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account social
and environmental cost implications relative to the utilization, development and conservation of our
natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the
mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and
higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for
policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid
special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former
"declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and
other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian of the environment for succeeding generations."
statute, on the other hand, gave flesh to the said policy.

17

The latter

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the
DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with
grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof
requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its
essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or
omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a
cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the
point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting
such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the
complaint? 20 InMilitante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care
and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative
allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough
to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or
partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned,
there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must,
nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished
member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their
acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause
found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored
(sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement.
In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the
non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by
providing undue and unwarranted benefits and advantages to the timber license holders because he would have
forever bound the Government to strictly respect the said licenses according to their terms and conditions
regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace
or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . .
.
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract,
property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of
Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. A timber license is not a contract within
the purview of the due process clause; it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a
contract between the authority, federal, state, or municipal, granting it and the person to whom it is
granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation
(37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights,
neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the
State regulates the utilization and disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular
concession area and the forest products therein. They may be validly amended, modified, replaced
or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27,
1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law
or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the nonimpairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of
the police power of the state for the purpose of advancing the right of the people to a balanced and healthful
ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police power of the State, in the interest of
public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co.
vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of contracts are normally matters
of private and not of public concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are absolute; for government cannot exist
if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of the public to
regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the
prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber
licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover,
with respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license
agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is
one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this
decision are likely to influence profoundly the direction and course of the protection and management of the
environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity.
I have therefore sought to clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance
of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly
regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the
subject matter of the suit. Because of the very broadness of the concept of "class" here involved membership in
this "class" appears to embrace everyone living in the country whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of action petitioners seek
to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to
be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public
administrative agency directly concerned and the private persons or entities operating in the field or sector of activity
involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether
some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior

exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future
determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right
the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced
and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is
fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without
doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope
and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which
can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic
fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw
sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of
dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other
living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water
resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court:
Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative
Code; and P.D. No. 1151, dated 6 June 1977 all appear to be formulations of policy, as general and abstract as
the constitutional statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful
ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a
compendious collection of more "specific environment management policies" and "environment quality standards"
(fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the
particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right
which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the
particular government agency charged with the formulation and implementation of guidelines and programs dealing
with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other
words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that
Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of
the Constitution are self-executing and judicially enforceable even in their present form. The implications of this
doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to
be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a right cast in
language of a significantly lower order of generality than Article II (15) of the Constitution that is or may be
violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can
validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as
simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the
proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless
the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants

may well be unable to defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration where a specific violation of law or applicable regulation is not
alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been
agrave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to
health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting
to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the
uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental
protection and management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to exist, then the
policy making departments the legislative and executive departments must be given a real and
effective opportunity to fashion and promulgate those norms and standards, and to implement them before
the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's
petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be
asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners
implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute
the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by
petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our
territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should,
however, be subjected to closer examination.

# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is
one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this
decision are likely to influence profoundly the direction and course of the protection and management of the
environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity.
I have therefore sought to clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance
of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly
regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the
subject matter of the suit. Because of the very broadness of the concept of "class" here involved membership in
this "class" appears to embrace everyone living in the country whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of action petitioners seek
to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to
be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public
administrative agency directly concerned and the private persons or entities operating in the field or sector of activity
involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether
some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future
determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right
the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced
and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is
fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without
doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope
and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which
can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic
fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw
sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of

dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other
living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water
resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court:
Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative
Code; and P.D. No. 1151, dated 6 June 1977 all appear to be formulations of policy, as general and abstract as
the constitutional statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful
ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a
compendious collection of more "specific environment management policies" and "environment quality standards"
(fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the
particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right
which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the
particular government agency charged with the formulation and implementation of guidelines and programs dealing
with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other
words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that
Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of
the Constitution are self-executing and judicially enforceable even in their present form. The implications of this
doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to
be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a right cast in
language of a significantly lower order of generality than Article II (15) of the Constitution that is or may be
violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can
validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as
simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the
proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless
the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants
may well be unable to defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration where a specific violation of law or applicable regulation is not
alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been
agrave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to
health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting
to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the
uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental
protection and management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to exist, then the
policy making departments the legislative and executive departments must be given a real and
effective opportunity to fashion and promulgate those norms and standards, and to implement them before
the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's
petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be
asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners
implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute
the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by
petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our
territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should,
however, be subjected to closer examination.
# Footnotes
1 Rollo, 164; 186.
2 Id., 62-65, exclusive of annexes.
3 Under Section 12, Rule 3, Revised Rules of Court.
4 Rollo, 67.
5 Id., 74.
6 Rollo, 70-73.
7 Annex "B" of Petitions; Id., 43-44.
8 Paragraph 7, Petition, 6; Rollo, 20.
9 Webster's Third New International Dictionary, unabridged, 1986, 1508.
10 Title XIV (Environment and Natural Resources), Book IV of the Administrative Code of 1987, E.O.
No. 292.
11 Annex "B" of Petition; Rollo, 43-44.
12 Record of the Constitutional Commission, vol. 4, 913.
13 For instance, the Preamble and Article XII on the National Economy and Patrimony.
14 The Reorganization Act of the Department of Environment and Natural Resources.
15 E.O. No. 292.
16 Section 1.
17 Section 2.
18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community Investment and Finance
Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. Vda. de Yulo, 16 SCRA 251 [1966]; Caseas vs.
Rosales, 19 SCRA 462 [1967]; Virata vs. Sandiganbayan, 202 SCRA 680 [1991]; Madrona vs.
Rosal, 204 SCRA 1 [1991].
19 Section 1(q), Rule 16, Revised Rules of Court.
20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs. Sandiganbayn, supra;
Madrona vs. Rosal, supra.
21 39 SCRA 473, 479 [1971].

22 1991 ed., 226-227.

23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs. Mitra, 187 SCRA 377 [1990]; Gonzales
vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA 844 [1991]; Bengzon vs. Senate
Blue Ribbon Committee, 203 SCRA 767 [1991].
24 Rollo, 44.
25 125 SCRA 302, 325 [1983].
26 190 SCRA 673, 684 [1990].
27 Article III, 1987 Constitution.
28 110 Phil. 198, 203 [1960]; footnotes omitted.
29 291 U.S. 502, 523, 78 L. ed. 940, 947-949.
30 22 SCRA 135, 146-147 [1968].
31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp. supra.; Phil. American
Life Insurance Co. vs. Auditor General, supra.; Alalayan vs. NPC, 24 SCRA 172[1968]; Victoriano
vs. Elizalde Rope Workers' Union, 59 SCRA 54 [1974]; Kabiling vs. National Housing Authority, 156
SCRA 623 [1987].

G.R. No. 91649

May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO

SANCHEZ,petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.
H.B. Basco & Associates for petitioners.
Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:
A TV ad proudly announces:
"The new PAGCOR responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the Philippine
Amusement and Gaming Corporation (PAGCOR) Charter PD 1869, because it is allegedly contrary to morals,
public policy and order, and because
A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived the
Manila City government's right to impose taxes and license fees, which is recognized by law;
B. For the same reason stated in the immediately preceding paragraph, the law has intruded into the local
government's right to impose local taxes and license fees. This, in contravention of the constitutionally
enshrined principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR conducted
gambling, while most other forms of gambling are outlawed, together with prostitution, drug trafficking and
other vices;
D. It violates the avowed trend of the Cory government away from monopolistic and crony economy, and
toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared national policy of
the "new restored democracy" and the people's will as expressed in the 1987 Constitution. The decree is said to
have a "gambling objective" and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and
Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being also the
Chairman of the Committee on Laws of the City Council of Manila), can question and seek the annulment of PD
1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A dated
January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to establish, operate
and maintain gambling casinos on land or water within the territorial jurisdiction of the Philippines." Its operation was
originally conducted in the well known floating casino "Philippine Tourist." The operation was considered a success
for it proved to be a potential source of revenue to fund infrastructure and socio-economic projects, thus, P.D. 1399
was passed on June 2, 1978 for PAGCOR to fully attain this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to regulate and
centralize all games of chance authorized by existing franchise or permitted by law, under the following declared
policy
Sec. 1. Declaration of Policy. It is hereby declared to be the policy of the State to centralize and integrate
all games of chance not heretofore authorized by existing franchises or permitted by law in order to attain
the following objectives:
(a) To centralize and integrate the right and authority to operate and conduct games of chance into one
corporate entity to be controlled, administered and supervised by the Government.
(b) To establish and operate clubs and casinos, for amusement and recreation, including sports gaming
pools, (basketball, football, lotteries, etc.) and such other forms of amusement and recreation including
games of chance, which may be allowed by law within the territorial jurisdiction of the Philippines and which
will: (1) generate sources of additional revenue to fund infrastructure and socio-civic projects, such as flood
control programs, beautification, sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional
Programs, Population Control and such other essential public services; (2) create recreation and integrated
facilities which will expand and improve the country's existing tourist attractions; and (3) minimize, if not
totally eradicate, all the evils, malpractices and corruptions that are normally prevalent on the conduct and
operation of gambling clubs and casinos without direct government involvement. (Section 1, P.D. 1869)

To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's
repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are accordingly
repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of Internal
Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly remitted to the
National Government a total of P2.5 Billion in form of franchise tax, government's income share, the President's
Social Fund and Host Cities' share. In addition, PAGCOR sponsored other socio-cultural and charitable projects on
its own or in cooperation with various governmental agencies, and other private associations and organizations. In
its 3 1/2 years of operation under the present administration, PAGCOR remitted to the government a total of P6.2
Billion. As of December 31, 1989, PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide,
directly supporting the livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and void" for
being "contrary to morals, public policy and public order," monopolistic and tends toward "crony economy", and is
violative of the equal protection clause and local autonomy as well as for running counter to the state policies
enunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II,
Section 1 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate consideration
by the Court, involving as it does the exercise of what has been described as "the highest and most delicate function
which belongs to the judicial department of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez,
146 SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the
government We need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence, that a
statute is presumed to be valid. Every presumption must be indulged in favor of its constitutionality. This is not to
say that We approach Our task with diffidence or timidity. Where it is clear that the legislature or the executive for
that matter, has over-stepped the limits of its authority under the constitution, We should not hesitate to wield the
axe and let it fall heavily, as fall it must, on the offending statute (Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar underscored
the
. . . thoroughly established principle which must be followed in all cases where questions of constitutionality
as obtain in the instant cases are involved. All presumptions are indulged in favor of constitutionality; one
who attacks a statute alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a
law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived
which supports the statute, it will be upheld and the challenger must negate all possible basis; that the
courts are not concerned with the wisdom, justice, policy or expediency of a statute and that a liberal
interpretation of the constitution in favor of the constitutionality of legislation should be adopted. (Danner v.
Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g.
Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978];
and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens Alliance for Consumer
Protection v. Energy Regulatory Board, 162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are questioning the legal personality of petitioners to
file the instant petition.
Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the
1987 Constitution, to determine whether or not the other branches of government have kept themselves within the
limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of this petition. (Kapatiran ng mga Naglilingkod
sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the cases before us, We hold that the
same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of
sustaining an immediate injury as a result of the acts or measures complained of. And even if, strictly
speaking they are not covered by the definition, it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing and resolving the serious constitutional
questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino although they were involving only an
indirect and general interest shared in common with the public. The Court dismissed the objection that they
were not proper parties and ruled that "the transcendental importance to the public of these cases demands
that they be settled promptly and definitely, brushing aside, if we must technicalities of procedure." We have
since then applied the exception in many other cases. (Association of Small Landowners in the Philippines,
Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling does not
mean that the Government cannot regulate it in the exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to
enact legislation that may interfere with personal liberty or property in order to promote the general welfare." (Edu v.
Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or restraint upon liberty or property, (2) in
order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general
terms to underscore its all-comprehensive embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163
SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done,
provides enough room for an efficient and flexible response to conditions and circumstances thus assuming the
greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter. Along with
the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental
attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the
expression has been credited, refers to it succinctly as the plenary power of the state "to govern its citizens". (Tribe,
American Constitutional Law, 323, 1978). The police power of the State is a power co-extensive with self-protection
and is most aptly termed the "law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660,
708) It is "the most essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a
dynamic force that enables the state to meet the agencies of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an appropriate
institution all games of chance authorized by existing franchise or permitted by law" (1st whereas clause, PD 1869).
As was subsequently proved, regulating and centralizing gambling operations in one corporate entity the
PAGCOR, was beneficial not just to the Government but to society in general. It is a reliable source of much needed
revenue for the cash strapped Government. It provided funds for social impact projects and subjected gambling to
"close scrutiny, regulation, supervision and control of the Government" (4th Whereas Clause, PD 1869). With the
creation of PAGCOR and the direct intervention of the Government, the evil practices and corruptions that go with
gambling will be minimized if not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD
1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal
fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They must be referring to
Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any "tax of any kind
or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local."
(2) Income and other taxes. a) Franchise Holder: No tax of any kind or form, income or otherwise as well
as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and collected
under this franchise from the Corporation; nor shall any form or tax or charge attach in any way to the
earnings of the Corporation, except a franchise tax of five (5%) percent of the gross revenues or earnings
derived by the Corporation from its operations under this franchise. Such tax shall be due and payable
quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of
any kind, nature or description, levied, established or collected by any municipal, provincial or national
government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of
Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643).
Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality cannot assume it"
(Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to a legislative act which is
superior having been passed upon by the state itself which has the "inherent power to tax" (Bernas, the Revised
[1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal
corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has the
power to "create and abolish municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes,
28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control over Local
governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the City of Manila the
power to tax certain matters, it can also provide for exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the
power of local governments to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by
P.D. No. 771 and was vested exclusively on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other local
governments to issue license, permit or other form of franchise to operate, maintain and establish horse and
dog race tracks, jai-alai and other forms of gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks, jaialai and other forms of gambling shall be issued by the national government upon proper application and
verification of the qualification of the applicant . . .

Therefore, only the National Government has the power to issue "licenses or permits" for the operation of gambling.
Necessarily, the power to demand or collect license fees which is a consequence of the issuance of "licenses or
permits" is no longer vested in the City of Manila.
(d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a
government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned
by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises
regulatory powers thus:
Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the affiliated entities, and shall
exercise all the powers, authority and the responsibilities vested in the Securities and Exchange
Commission over such affiliating entities mentioned under the preceding section, including, but not limited to
amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure, capitalization
and other matters concerning the operation of the affiliated entities, the provisions of the Corporation Code
of the Philippines to the contrary notwithstanding, except only with respect to original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which
places it in the category of an agency or instrumentality of the Government. Being an instrumentality of the
Government, PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might be
burdened, impeded or subjected to control by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the
operation of constitutional laws enacted by Congress to carry into execution the powers vested in the federal
government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power on the part
of the States to touch, in that way (taxation) at least, the instrumentalities of the United States (Johnson v.
Maryland, 254 US 51) and it can be agreed that no state or political subdivision can regulate a federal
instrumentality in such a way as to prevent it from consummating its federal responsibilities, or even to
seriously burden it in the accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140,
emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of what local authorities may
perceive to be undesirable activities or enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez,
340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v. Maryland, supra)
cannot be allowed to defeat an instrumentality or creation of the very entity which has the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D. 1869. This is a
pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own source of revenue and to levy
taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide,
consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to
the local government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to "limitations" which Congress may
provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII,
1987 Constitution), its "exemption clause" remains as an exception to the exercise of the power of local
governments to impose taxes and fees. It cannot therefore be violative but rather is consistent with the principle of
local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III Records of
the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the Republic of the
Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign within the state or an
"imperium in imperio."
Local Government has been described as a political subdivision of a nation or state which is constituted by
law and has substantial control of local affairs. In a unitary system of government, such as the government
under the Philippine Constitution, local governments can only be an intra sovereign subdivision of one
sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a
measure of decentralization of the function of government. (emphasis supplied)
As to what state powers should be "decentralized" and what may be delegated to local government units remains a
matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for Consumer
Protection v. Energy Regulatory Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern and
hence, it is the sole prerogative of the State to retain it or delegate it to local governments.

As gambling is usually an offense against the State, legislative grant or express charter power is generally
necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant of
power to enact, ordinance provisions on this subject which are inconsistent with the state laws are void.
(Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah
You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548,
emphasis supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because "it legalized
PAGCOR conducted gambling, while most gambling are outlawed together with prostitution, drug trafficking and
other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-accepted
meaning of the clause "equal protection of the laws." The clause does not preclude classification of individuals who
may be accorded different treatment under the law as long as the classification is not unreasonable or arbitrary
(Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal force on all persons or things to be
conformable to Article III, Section 1 of the Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or objects
upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not require situations
which are different in fact or opinion to be treated in law as though they were the same (Gomez v. Palomar, 25
SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not clearly
explained in the petition. The mere fact that some gambling activities like cockfighting (P.D 449) horse racing (R.A.
306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are legalized
under certain conditions, while others are prohibited, does not render the applicable laws, P.D. 1869 for one,
unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other
instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that all occupations called by the same
name must be treated the same way; the state may do what it can to prevent which is deemed as evil and
stop short of those cases in which harm to the few concerned is not less than the harm to the public that
would insure if the rule laid down were made mathematically exact. (Dominican Hotel v. Arizona, 249 US
2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away from
monopolies and crony economy and toward free enterprise and privatization" suffice it to state that this is not a
ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's policies then it is for
the Executive Department to recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare what the law is and not what the law
should be. Under our system of government, policy issues are within the domain of the political branches of
government and of the people themselves as the repository of all state power. (Valmonte v. Belmonte, Jr.,
170 SCRA 256).
1wphi 1

On the issue of "monopoly," however, the Constitution provides that:

Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No combinations
in restraint of trade or unfair competition shall be allowed. (Art. XII, National Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the Constitution.
The state must still decide whether public interest demands that monopolies be regulated or prohibited. Again, this
is a matter of policy for the Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13 (Role of
Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the
1987 Constitution, suffice it to state also that these are merely statements of principles and, policies. As such, they
are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such
principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and the legislature.
If the executive and the legislature failed to heed the directives of the articles the available remedy was not
judicial or political. The electorate could express their displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v.
Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD
1869 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not merely a
doubtful and equivocal one. In other words, the grounds for nullity must be clear and beyond reasonable doubt.
(Peralta v. Comelec, supra) Those who petition this Court to declare a law, or parts thereof, unconstitutional must
clearly establish the basis for such a declaration. Otherwise, their petition must fail. Based on the grounds raised by
petitioners to challenge the constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the

presumption. The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise
legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization as well as the state
principles on social justice, role of youth and educational values" being raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the
presumption of validity and constitutionality which petitioners Valmonte and the KMU have not overturned.
Petitioners have not undertaken to identify the provisions in the Constitution which they claim to have been
violated by that statute. This Court, however, is not compelled to speculate and to imagine how the assailed
legislation may possibly offend some provision of the Constitution. The Court notes, further, in this respect
that petitioners have in the main put in question the wisdom, justice and expediency of the establishment of
the OPSF, issues which are not properly addressed to this Court and which this Court may not
constitutionally pass upon. Those issues should be addressed rather to the political departments of
government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the gambling
resorted to is excessive. This excessiveness necessarily depends not only on the financial resources of the gambler
and his family but also on his mental, social, and spiritual outlook on life. However, the mere fact that some persons
may have lost their material fortunes, mental control, physical health, or even their lives does not necessarily mean
that the same are directly attributable to gambling. Gambling may have been the antecedent, but certainly not
necessarily the cause. For the same consequences could have been preceded by an overdose of food, drink,
exercise, work, and even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento, Grio-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.

Separate Opinions
PADILLA, J., concurring:
I concur in the result of the learned decision penned by my brother Mr. Justice Paras. This means that I agree with
the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling
properly pertain to "state policy." It is, therefore, the political departments of government, namely, the legislative and
the executive that should decide on what government should do in the entire area of gambling, and assume full
responsibility to the people for such policy.
The courts, as the decision states, cannot inquire into the wisdom, morality or expediency of policies adopted by the
political departments of government in areas which fall within their authority, except only when such policies pose a
clear and present danger to the life, liberty or property of the individual. This case does not involve such a factual
situation.
However, I hasten to make of record that I do not subscribe to gambling in any form. It demeans the human
personality, destroys self-confidence and eviscerates one's self-respect, which in the long run will corrode whatever
is left of the Filipino moral character. Gambling has wrecked and will continue to wreck families and homes; it is an
antithesis to individual reliance and reliability as well as personal industry which are the touchstones of real
economic progress and national development.
Gambling is reprehensible whether maintained by government or privatized. The revenues realized by the
government out of "legalized" gambling will, in the long run, be more than offset and negated by the irreparable
damage to the people's moral values.
Also, the moral standing of the government in its repeated avowals against "illegal gambling" is fatally flawed and
becomes untenable when it itself engages in the very activity it seeks to eradicate.
One can go through the Court's decision today and mentally replace the activity referred to therein as gambling,
which is legal only because it is authorized by law and run by the government, with the activity known asprostitution.
Would prostitution be any less reprehensible were it to be authorized by law, franchised, and "regulated" by the
government, in return for the substantial revenues it would yield the government to carry out its laudable projects,
such as infrastructure and social amelioration? The question, I believe, answers itself. I submit that the sooner the
legislative department outlaws all forms of gambling, as a fundamental state policy, and the sooner the executive
implements such policy, the better it will be for the nation.
Melencio-Herrera, J., concur.

G.R. No. 177271

May 4, 2007

BANTAY REPUBLIC ACT OR BA-RA 7941, represented by MR. AMEURFINO E. CINCO, Chairman, AND
URBAN POOR FOR LEGAL REFORMS (UP-LR), represented by MRS. MYRNA P. PORCARE, SecretaryGeneral, Petitioners,
vs.
COMMISSION ON ELECTIONS, BIYAHENG PINOY, KAPATIRAN NG MGA NAKAKULONG NA WALANG SALA
(KAKUSA), BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT),
AHON PINOY, AGRICULTURAL SECTOR ALLIANCE OF THE PHILIPPINES, INC. (AGAP), PUWERSA NG
BAYANING ATLETA (PBA), ALYANSA NG MGA GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA PARA SA
MAMAMAYAN, INC. (AGHAM), BABAE PARA SA KAUNLARAN (BABAE KA), AKSYON SAMBAYANAN
(AKSA), ALAY SA BAYAN NG MALAYANG PROPESYUNAL AT REPORMANG KALAKAL (ABAY-PARAK),
AGBIAG TIMPUYOG ILOCANO, INC. (AGBIAG!), ABANTE ILONGGO, INC. (ABA ILONGGO), AANGAT TAYO
(AT), AANGAT ANG KABUHAYAN (ANAK), BAGO NATIONAL CULTURAL SOCIETY OF THE PHILIPPINES
(BAGO), ANGAT ANTAS-KABUHAYAN PILIPINO MOVEMENT (AANGAT KA PILIPINO), ARTS BUSINESS
AND SCIENCE PROFESSIONAL (ABS), ASSOSASYON NG MGA MALILIIT NA NEGOSYANTENG
GUMAGANAP INC. (AMANG), SULONG BARANGAY MOVEMENT, KASOSYO PRODUCERS CONSUMER
EXCHANGE ASSOCIATION, INC. (KASOSYO), UNITED MOVEMENT AGAINST DRUGS (UNI-MAD), PARENTS
ENABLING PARENTS (PEP), ALLIANCE OF NEO-CONSERVATIVES (ANC), FILIPINOS FOR PEACE, JUSTICE
AND PROGRESS MOVEMENT (FPJPM), BIGKIS PINOY MOVEMENT (BIGKIS), 1-UNITED TRANSPORT
KOALISYON (1-UNTAK), ALLIANCE FOR BARANGAY CONCERNS (ABC), BIYAYANG BUKID, INC.,
ALLIANCE FOR NATIONALISM AND DEMOCRACY (ANAD), AKBAY PINOY OFW-NATIONAL INC., (APOI),
ALLIANCE TRANSPORT SECTOR (ATS), KALAHI SECTORAL PARTY (ADVOCATES FOR OVERSEAS
FILIPINO) AND ASSOCIATION OF ADMINISTRATORS, PROFESSIONALS AND SENIORS
(AAPS),Respondents.
x--------------------------------------------------x
G.R. No. 177314

May 4, 2007

REP. LORETTA ANN P. ROSALES, KILOSBAYAN FOUNDATION, BANTAY KATARUNGAN

FOUNDATION,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
DECISION
GARCIA, J.:
Before the Court are these two consolidated petitions for certiorari and mandamus to nullify and set aside certain
issuances of the Commission on Elections (Comelec) respecting party-list groups which have manifested their
intention to participate in the party-list elections on May 14, 2007.
In the first petition, docketed as G.R. No. 177271, petitioners Bantay Republic Act (BA-RA 7941, for short) and the
Urban Poor for Legal Reforms (UP-LR, for short) assail the various Comelec resolutions accrediting private
respondents Biyaheng Pinoy et al., to participate in the forthcoming party-list elections on May 14, 2007 without
simultaneously determining whether or not their respective nominees possess the requisite qualifications defined in
Republic Act (R.A.) No. 7941, or the "Party-List System Act" and belong to the marginalized and underrepresented
sector each seeks to represent. In the second, docketed as G.R. No. 177314, petitioners Loreta Ann P. Rosales,
Kilosbayan Foundation and Bantay Katarungan Foundation impugn Comelec Resolution 07-0724 dated April 3,
2007 effectively denying their request for the release or disclosure of the names of the nominees of the fourteen (14)
accredited participating party-list groups mentioned in petitioner Rosales previous letter-request.
While both petitions commonly seek to compel the Comelec to disclose or publish the names of the nominees of the
various party-list groups named in the petitions,1 the petitioners in G.R. No. 177271 have the following additional
prayers: 1) that the 33 private respondents named therein be "declare[d] as unqualified to participate in the party-list
elections as sectoral organizations, parties or coalition for failure to comply with the guidelines prescribed by the
[Court] in [Ang Bagong Bayani v. Comelec2]" and, 2) correspondingly, that the Comelec be enjoined from allowing
respondent groups from participating in the May 2007 elections.
In separate resolutions both dated April 24, 2007, the Court en banc required the public and private respondents to
file their respective comments on the petitions within a non-extendible period of five (5) days from notice. Apart from
respondent Comelec, seven (7) private respondents3 in G.R. No. 177271 and one party-list group4mentioned in G.R.
No. 177314 submitted their separate comments. In the main, the separate comments of the private respondents
focused on the untenability and prematurity of the plea of petitioners BA-RA 7941 and UP-LR to nullify their
accreditation as party-list groups and thus disqualify them and their respective nominees from participating in the
May 14, 2007 party-list elections.
The facts:
On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules and regulations to govern the filing
of manifestation of intent to participate and submission of names of nominees under the party-list system of
representation in connection with the May 14, 2007 elections. Pursuant thereto, a number of organized groups filed
the necessary manifestations. Among these and ostensibly subsequently accredited by the Comelec to participate
in the 2007 elections - are 14 party-list groups, namely: (1) BABAE KA; (2) ANG KASANGGA; (3)AKBAY PINOY;

(4) AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW PARTY; (8) BIYAHENG PINOY; (9) ANAD; (10) AANGAT ANG
KABUHAYAN; (11) AGBIAG; (12) BANAT; (13) BANTAY LIPAD; (14) AGING PINOY. Petitioners BA-RA 7941 and
UP-LR presented a longer, albeit an overlapping, list.
Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an Urgent Petition to Disqualify, thereunder
seeking to disqualify the nominees of certain party-list organizations. Both petitioners appear not to have the names
of the nominees sought to be disqualified since they still asked for a copy of the list of nominees. Docketed in the
Comelec as SPA Case No 07-026, this urgent petition has yet to be resolved.
Meanwhile, reacting to the emerging public perception that the individuals behind the aforementioned 14 party-list
groups do not, as they should, actually represent the poor and marginalized sectors, petitioner Rosales, in G.R. No.
177314, addressed a letter5 dated March 29, 2007 to Director Alioden Dalaig of the Comelecs Law Department
requesting a list of that groups nominees. Another letter6 of the same tenor dated March 31, 2007 followed, this time
petitioner Rosales impressing upon Atty. Dalaig the particular urgency of the subject request.
Neither the Comelec Proper nor its Law Department officially responded to petitioner Rosales requests. The April
13, 2007 issue of the Manila Bulletin, however, carried the front-page banner headline "COMELEC WONT BARE
PARTY-LIST NOMINEES",7 with the following sub-heading: "Abalos says party-list polls not personality oriented."
On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their own behalves and as
counsels of petitioner Rosales, forwarded a letter8 to the Comelec formally requesting action and definitive decision
on Rosales earlier plea for information regarding the names of several party-list nominees. Invoking their
constitutionally-guaranteed right to information, Messrs. Capulong and Salonga at the same time drew attention to
the banner headline adverted to earlier, with a request for the Comelec, "collectively or individually, to issue a formal
clarification, either confirming or denying the banner headline and the alleged statement of Chairman Benjamin
Abalos, Sr. xxx" Evidently unbeknownst then to Ms. Rosales, et al., was the issuance of Comelec en
banc Resolution 07-07249 under date April 3, 2007 virtually declaring the nominees names confidential and in net
effect denying petitioner Rosales basic disclosure request. In its relevant part, Resolution 07-0724 reads as follows:
RESOLVED, moreover, that the Commission will disclose/publicize the names of party-list nominees in connection
with the May 14, 2007 Elections only after 3:00 p.m. on election day.
Let the Law Department implement this resolution and reply to all letters addressed to the Commission inquiring on
the party-list nominees. (Emphasis added.)
According to petitioner Rosales, she was able to obtain a copy of the April 3, 2007 Resolution only on April 21,
2007. She would later state the observation that the last part of the "Order empowering the Law Department to
implement this resolution and reply to all letters inquiring on the party-list nominees is apparently a fool-proof
bureaucratic way to distort and mangle the truth and give the impression that the antedated Resolution of April 3,
2007 is the final answer to the two formal requests of Petitioners".10
The herein consolidated petitions are cast against the foregoing factual setting, albeit petitioners BA-RA 7941 and
UP-LR appear not to be aware, when they filed their petition on April 18, 2007, of the April 3, 2007 Comelec
Resolution 07-0724.
To start off, petitioners BA-RA 7941 and UP-LR would have the Court cancel the accreditation accorded by the
Comelec to the respondent party-list groups named in their petition on the ground that these groups and their
respective nominees do not appear to be qualified. In the words of petitioners BA-RA 7941 and UP-LR, Comelec xxx committed grave abuse of discretion when it granted the assailed accreditations even
withoutsimultaneously determining whether the nominees of herein private respondents are qualified or not, or
whether or not the nominees are likewise belonging to the marginalized and underrepresented sector they claim to
represent in Congress, in accordance with No. 7 of the eight-point guidelines prescribed by the Honorable Supreme
in the Ang Bagong Bayani11 case which states that, "not only the candidate party or organization must represent
marginalized and underrepresented sectors; so also must its nominees." In the case of private respondents, public
respondent Comelec granted accreditations without the required simultaneous determination of the qualification of
the nominees as part of the accreditation process of the party-list organization itself. (Words in bracket added;
italization in the original)12
The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UP-LR for cancellation of accreditation
on the grounds thus advanced in their petition. For, such course of action would entail going over and evaluating the
qualities of the sectoral groups or parties in question, particularly whether or not they indeed represent
marginalized/underrepresented groups. The exercise would require the Court to make a factual determination, a
matter which is outside the office of judicial review by way of special civil action for certiorari. In certiorari
proceedings, the Court is not called upon to decide factual issues and the case must be decided on the undisputed
facts on record.13 The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave abuse of
discretion and does not include a review of the tribunals evaluation of the evidence.14
Not lost on the Court of course is the pendency before the Comelec of SPA Case No. 07-026 in which petitioners
BA-RA 7941 and UP-LR themselves seek to disqualify the nominees of the respondent party-list groups named in
their petition.
Petitioners BA-RA 7941s and UP-LRs posture that the Comelec committed grave abuse of discretion when it
granted the assailed accreditations without simultaneously determining the qualifications of their nominees is without
basis. Nowhere in R.A. No. 7941 is there a requirement that the qualification of a party-list nominee be determined

simultaneously with the accreditation of an organization. And as aptly pointed out by private respondent Babae Para
sa Kaunlaran (Babae Ka), Section 4 of R.A. No. 7941 requires a petition for registration of a party-list organization to
be filed with the Comelec "not later than ninety (90) days before the election" whereas the succeeding Section 8
requires the submission "not later than forty-five (45) days before the election" of the list of names whence party-list
representatives shall be chosen.
Now to the other but core issues of the case. The petition in G.R. No. 177314 formulates and captures the main
issues tendered by the petitioners in these consolidated cases and they may be summarized as follows:
1. Whether respondent Comelec, by refusing to reveal the names of the nominees of the various party-list
groups, has violated the right to information and free access to documents as guaranteed by the
Constitution; and
2. Whether respondent Comelec is mandated by the Constitution to disclose to the public the names of said
nominees.
While the Comelec did not explicitly say so, it based its refusal to disclose the names of the nominees of subject
party-list groups on Section 7 of R.A. 7941. This provision, while commanding the publication and the posting in
polling places of a certified list of party-list system participating groups, nonetheless tells the Comelec not to show or
include the names of the party-list nominees in said certified list. Thus:
SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than sixty (60) days before election,
prepare a certified list of national, regional, or sectoral parties, organizations or coalitions which have applied or who
have manifested their desire to participate under the party-list system and distribute copies thereof to all precincts
for posting in the polling places on election day. The names of the party-list nominees shall not be shown on
the certified list. (Emphasis added.)
And doubtless part of Comelecs reason for keeping the names of the party list nominees away from the public is
deducible from the following excerpts of the news report appearing in the adverted April 13, 2007 issue of theManila
Bulletin:
The Commission on Elections (COMELEC) firmed up yesterday its decision not to release the names of nominees
of sectoral parties, organizations, or coalitions accredited to participate in the party-list election which will be held
simultaneously with the May 14 mid-term polls.
COMELEC Chairman Benjamin S. Abalos, Sr. said he and [the other five COMELEC] Commissioners --- believe
that the party list elections must not be personality oriented.
Abalos said under [R.A.] 7941 , the people are to vote for sectoral parties, organizations, or coalitions, not for
their nominees.
He said there is nothing in R.A. 7941 that requires the Comelec to disclose the names of nominees. xxx (Words in
brackets and emphasis added)
Insofar as the disclosure issue is concerned, the petitions are impressed with merit.
Assayed against the non-disclosure stance of the Comelec and the given rationale therefor is the right to information
enshrined in the self-executory15 Section 7, Article III of the Constitution, viz:
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 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.
Complementing and going hand in hand with the right to information is another constitutional provision enunciating
the policy of full disclosure and transparency in Government. We refer to Section 28, Article II of the Constitution
reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
The right to information is a public right where the real parties in interest are the public, or the citizens to be precise.
And for every right of the people recognized as fundamental lies a corresponding duty on the part of those who
govern to respect and protect that right. This is the essence of the Bill of Rights in a constitutional regime.16 Without
a governments acceptance of the limitations upon it by the Constitution in order to uphold individual liberties,
without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of
Rights becomes a sophistry.
By weight of jurisprudence, any citizen can challenge any attempt to obstruct the exercise of his right to information
and may seek its enforcement by mandamus.17 And since every citizen by the simple fact of his citizenship
possesses the right to be informed, objections on ground of locus standi are ordinarily unavailing.18
Like all constitutional guarantees, however, the right to information and its companion right of access to official
records are not absolute. As articulated in Legaspi, supra, the peoples right to know is limited to "matters of public

concern" and is further subject to such limitation as may be provided by law. Similarly, the policy of full disclosure is
confined to transactions involving "public interest" and is subject to reasonable conditions prescribed by law. Too,
there is also the need of preserving a measure of confidentiality on some matters, such as military, trade, banking
and diplomatic secrets or those affecting national security.19
The terms "public concerns" and "public interest" have eluded precise definition. But both terms embrace, to borrow
from Legaspi, a broad spectrum of subjects which the public may want to know, either because these directly affect
their lives, or simply because such matters naturally whet the interest of an ordinary citizen. At the end of the day, it
is for the courts to determine, on a case to case basis, whether or not at issue is of interest or importance to the
public.
If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons employed as sanitarians of a
health department of a city are civil service eligibles, surely the identity of candidates for a lofty elective public office
should be a matter of highest public concern and interest.
As may be noted, no national security or like concerns is involved in the disclosure of the names of the nominees of
the party-list groups in question. Doubtless, the Comelec committed grave abuse of discretion in refusing the
legitimate demands of the petitioners for a list of the nominees of the party-list groups subject of their respective
petitions. Mandamus, therefore, lies.
The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list nominees shall not be shown on
the certified list" is certainly not a justifying card for the Comelec to deny the requested disclosure. To us, the
prohibition imposed on the Comelec under said Section 7 is limited in scope and duration, meaning, that it extends
only to the certified list which the same provision requires to be posted in the polling places on election day. To
stretch the coverage of the prohibition to the absolute is to read into the law something that is not intended. As it
were, there is absolutely nothing in R.A. No. 7941 that prohibits the Comelec from disclosing or even publishing
through mediums other than the "Certified List" the names of the party-list nominees. The Comelec obviously
misread the limited non-disclosure aspect of the provision as an absolute bar to public disclosure before the May
2007 elections. The interpretation thus given by the Comelec virtually tacks an unconstitutional dimension on the
last sentence of Section 7 of R.A. No. 7941.
The Comelecs reasoning that a party-list election is not an election of personalities is valid to a point. It cannot be
taken, however, to justify its assailed non-disclosure stance which comes, as it were, with a weighty presumption of
invalidity, impinging, as it does, on a fundamental right to information.20 While the vote cast in a party-list elections is
a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would
eventually sit in the House of Representatives.
The Court is very much aware of newspaper reports detailing the purported reasons behind the Comelecs
disinclination to release the names of party-list nominees. It is to be stressed, however, that the Court is in the
business of dispensing justice on the basis of hard facts and applicable statutory and decisional laws. And lest it be
overlooked, the Court always assumes, at the first instance, the presumptive validity and regularity of official acts of
government officials and offices.
It has been repeatedly said in various contexts that the people have the right to elect their representatives on the
basis of an informed judgment. Hence the need for voters to be informed about matters that have a bearing on their
choice. The ideal cannot be achieved in a system of blind voting, as veritably advocated in the assailed resolution of
the Comelec. The Court, since the 1914 case of Gardiner v. Romulo,21 has consistently made it clear that it frowns
upon any interpretation of the law or rules that would hinder in any way the free and intelligent casting of the votes in
an election.22 So it must be here for still other reasons articulated earlier.
In all, we agree with the petitioners that respondent Comelec has a constitutional duty to disclose and release the
names of the nominees of the party-list groups named in the herein petitions.
WHEREFORE, the petition in G.R. No. 177271 is partly DENIED insofar as it seeks to nullify the accreditation of the
respondents named therein. However, insofar as it seeks to compel the Comelec to disclose or publish the names of
the nominees of party-list groups, sectors or organizations accredited to participate in the May 14, 2007 elections,
the same petition and the petition in G.R. No. 177314 are GRANTED. Accordingly, the Comelec is hereby
ORDERED to immediately disclose and release the names of the nominees of the party-list groups, sectors or
organizations accredited to participate in the May 14, 2007 party-list elections. The Comelec is further DIRECTED to
submit to the Court its compliance herewith within five (5) days from notice hereof.
This Decision is declared immediately executory upon its receipt by the Comelec.
No pronouncement as to cost.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Asscociate Justice

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

ANTONIO T. CARPIO
Asscociate Justice

(on leave)
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

(on leave)
RENATO C. CORONA
Asscociate Justice

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. AZCUNA
Asscociate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Asscociate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1

At least nine (9) party-list groups subject of the second petition are respondents in the first petition.

G. R. No. 147589, June 26, 2001, 359 SCRA 698.

ABS, Babae Ka, PEP, ANC, FPJPM, AAPS, AANGAT ka Pilipino and KALAHI.

AKSA.

Annex "E," of Petition in G.R. No. 177314.

Annex "F," of Petition in G.R. No. 177314.

Petition (G.R. 177314), p. 8.

Annex "G," of Petition in G.R. No. 177314.

Annex " B," of Petition in G.R. No. 177314.

10

Petition in G.R. SP. No.177314, p. 3.

11

Ang Bagong Bayani-OFW Labor Part v. Commission on Elections, Supra note 2.

12

Page 5 of the petition in G. R. No. 177271.

13

Pobre v. Gonong, G. R. No. L-60575, March 16, 1987, 148 SCRA 553.

14

Sea Power Shipping Enterprises, Inc. v. CA, G.R. No. 138270, June 28, 2001, 360 SCRA 173; Oro v.
Diaz, G.R. No. 140974, July 11, 2001, 361 SCRA 108.
15

Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733.

16

Legaspi v. Civil Service Commission, G. R. No. L-72119, May 19, 1987, 150 SCRA 530, citing Cooley.

17

Tanada v. Tuvera, G. R. No. L-63915, April 24, 1985, 136 SCRA 27.

18

Bernas, The Constitution of the Philippines: A Commentary, 1996 ed., p. 334.

19

Chavez v. PCGG, G.R. No. 130716, December 9, 1998, 299 SCRA 744.

20

Ayer Productions Pty. Ltd. v. Capulong, G.R. No. L- 82380, April 29, 1988, 160 SCRA 861.

21

G. R. No. L-8921, January 9, 1914, 26 Phil. 521.

22

Rodriquez v. Commission on Elections, G. R. No. L-61545, December 27, 1982, 119 SCRA 465.