EN BANC

[G.R. No. 138570. October 10, 2000]

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia
Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO
LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA,
PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO
ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO
MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO
TATAD, respondents.
[G.R. No. 138572. October 10, 2000]

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT

INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as
Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and HON. DOMINGO L.
SIAZON, JR., as Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners, vs. JOSEPH E.
ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B.
FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila Grapilon,
petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON.
DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]

JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO SIMBULAN,

PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO,
FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE
SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE,
SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON,
AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION
IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues
relating to, and borne by, an agreement forged in the turn of the last century between the Republic of the Philippines
and the United States of America -the Visiting Forces Agreement.

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement which
formalized, among others, the use of installations in the Philippine territory by United States military personnel. To
further strengthen their defense and security relationship, the Philippines and the United States entered into a Mutual
Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to respond to any external armed attack on
their territory, armed forces, public vessels, and aircraft.[1]

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the United
States negotiated for a possible extension of the military bases agreement. On September 16, 1991, the Philippine
Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have
extended the presence of US military bases in the Philippines.[2] With the expiration of the RP-US Military Bases
Agreement, the periodic military exercises conducted between the two countries were held in abeyance.
Notwithstanding, the defense and security relationship between the Philippines and the United States of America
continued pursuant to the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt
Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange

1
notes on “the complementing strategic interests of the United States and the Philippines in the Asia-Pacific region.”
Both sides discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA for brevity).
Negotiations by both panels on the VFA led to a consolidated draft text, which in turn resulted to a final series of
conferences and negotiations[3] that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel
V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA.[4]

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially
transmitted to the Senate of the Philippines,[5] the Instrument of Ratification, the letter of the President[6] and the
VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the
VFA to its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense
and Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint
public hearings were held by the two Committees.[7]

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443[8] recommending the concurrence of
the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates
then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) vote[9] of its
members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.[10]

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary
Siazon and United States Ambassador Hubbard.

The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating the
circumstances and conditions under which US Armed Forces and defense personnel may be present in the Philippines,
and is quoted in its full text, hereunder:

“Article I
Definitions

“As used in this Agreement, ‘United States personnel’ means United States military and civilian personnel temporarily
in the Philippines in connection with activities approved by the Philippine Government.

“Within this definition:

“1. The term ‘military personnel’ refers to military members of the United States Army, Navy, Marine Corps, Air
Force, and Coast Guard.

“2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor ordinary residents in the
Philippines and who are employed by the United States armed forces or who are accompanying the United States
armed forces, such as employees of the American Red Cross and the United Services Organization.

“Article II
Respect for Law

“It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from
any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the
Philippines. The Government of the United States shall take all measures within its authority to ensure that this is done.

“Article III
Entry and Departure

“1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure
from the Philippines in connection with activities covered by this agreement.

“2. United States military personnel shall be exempt from passport and visa regulations upon entering and departing the
Philippines.

2
“3. The following documents only, which shall be presented on demand, shall be required in respect of United States
military personnel who enter the Philippines:

“(a) personal identity card issued by the appropriate United States authority showing full name, date of birth, rank or
grade and service number (if any), branch of service and photograph;

“(b) individual or collective document issued by the appropriate United States authority, authorizing the travel or visit
and identifying the individual or group as United States military personnel; and

“(c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and when required by
the cognizant representative of the Government of the Philippines, shall conduct a quarantine inspection and will
certify that the aircraft or vessel is free from quarantinable diseases. Any quarantine inspection of United States aircraft
or United States vessels or cargoes thereon shall be conducted by the United States commanding officer in accordance
with the international health regulations as promulgated by the World Health Organization, and mutually agreed
procedures.

“4. United States civilian personnel shall be exempt from visa requirements but shall present, upon demand, valid
passports upon entry and departure of the Philippines.

“5. If the Government of the Philippines has requested the removal of any United States personnel from its territory, the
United States authorities shall be responsible for receiving the person concerned within its own territory or otherwise
disposing of said person outside of the Philippines.

“Article IV
Driving and Vehicle Registration

“1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the appropriate
United States authority to United States personnel for the operation of military or official vehicles.

“2. Vehicles owned by the Government of the United States need not be registered, but shall have appropriate
markings.

“Article V
Criminal Jurisdiction

“1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within
the Philippines and punishable under the law of the Philippines.

(b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary
jurisdiction conferred on them by the military law of the United States over United States personnel in the Philippines.

“2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses,
including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not under
the laws of the United States.

(b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses,
including offenses relating to the security of the United States, punishable under the laws of the United States, but not
under the laws of the Philippines.

(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security means:

(1) treason;

(2) sabotage, espionage or violation of any law relating to national defense.

“3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United
States personnel, except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.

3
(b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel
subject to the military law of the United States in relation to.

(1) offenses solely against the property or security of the United States or offenses solely against the property or person
of United States personnel; and

(2) offenses arising out of any act or omission done in performance of official duty.

(c) The authorities of either government may request the authorities of the other government to waive their primary
right to exercise jurisdiction in a particular case.

(d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among
their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise
jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines
that the case is of particular importance, it shall communicate such determination to the United States authorities within
twenty (20) days after the Philippine authorities receive the United States request.

(e) When the United States military commander determines that an offense charged by authorities of the Philippines
against United states personnel arises out of an act or omission done in the performance of official duty, the
commander will issue a certificate setting forth such determination. This certificate will be transmitted to the
appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those cases where the Government of the Philippines believes the
circumstances of the case require a review of the duty certificate, United States military authorities and Philippine
authorities shall consult immediately. Philippine authorities at the highest levels may also present any information
bearing on its validity. United States military authorities shall take full account of the Philippine position. Where
appropriate, United States military authorities will take disciplinary or other action against offenders in official duty
cases, and notify the Government of the Philippines of the actions taken.

(f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the other
government as soon as possible.

(g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in
which both the authorities of the Philippines and the United States have the right to exercise jurisdiction.

“4. Within the scope of their legal competence, the authorities of the Philippines and United States shall assist each
other in the arrest of United States personnel in the Philippines and in handling them over to authorities who are to
exercise jurisdiction in accordance with the provisions of this article.

“5. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of United
States personnel who are subject of Philippine primary or exclusive jurisdiction. Philippine authorities shall promptly
notify United States military authorities of the arrest or detention of any United States personnel.

“6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately
reside with United States military authorities, if they so request, from the commission of the offense until completion of
all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities
and without delay, make such personnel available to those authorities in time for any investigative or judicial
proceedings relating to the offense with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody, which the United States
Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year,
the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the
time necessary to appeal. Also, the one-year period will not include any time during which scheduled trial procedures
are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.

“7. Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the
carrying out of all necessary investigation into offenses and shall cooperate in providing for the attendance of witnesses
and in the collection and production of evidence, including seizure and, in proper cases, the delivery of objects
connected with an offense.

“8. When United States personnel have been tried in accordance with the provisions of this Article and have been
acquitted or have been convicted and are serving, or have served their sentence, or have had their sentence remitted or
suspended, or have been pardoned, they may not be tried again for the same offense in the Philippines. Nothing in this

4
paragraph, however, shall prevent United States military authorities from trying United States personnel for any
violation of rules of discipline arising from the act or omission which constituted an offense for which they were tried
by Philippine authorities.

“9. When United States personnel are detained, taken into custody, or prosecuted by Philippine authorities, they shall
be accorded all procedural safeguards established by the law of the Philippines. At the minimum, United States
personnel shall be entitled:

(a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable time
to prepare a defense;

(c) To be confronted with witnesses against them and to cross examine such witnesses;

(d) To present evidence in their defense and to have compulsory process for obtaining witnesses;

(e) To have free and assisted legal representation of their own choice on the same basis as nationals of the Philippines;

(f) To have the service of a competent interpreter; and

(g) To communicate promptly with and to be visited regularly by United States authorities, and to have such authorities
present at all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine
laws, excludes persons who have no role in the proceedings.

“10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities
agreed on by appropriate Philippine and United States authorities. United States Personnel serving sentences in the
Philippines shall have the right to visits and material assistance.

“11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and shall not be
subject to the jurisdiction of Philippine military or religious courts.

“Article VI
Claims

“1. Except for contractual arrangements, including United States foreign military sales letters of offer and acceptance
and leases of military equipment, both governments waive any and all claims against each other for damage, loss or
destruction to property of each other’s armed forces or for death or injury to their military and civilian personnel arising
from activities to which this agreement applies.

“2. For claims against the United States, other than contractual claims and those to which paragraph 1 applies, the
United States Government, in accordance with United States law regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or
omissions of United States personnel, or otherwise incident to the non-combat activities of the United States forces.

“Article VII
Importation and Exportation

“1. United States Government equipment, materials, supplies, and other property imported into or acquired in the
Philippines by or on behalf of the United States armed forces in connection with activities to which this agreement
applies, shall be free of all Philippine duties, taxes and other similar charges. Title to such property shall remain with
the United States, which may remove such property from the Philippines at any time, free from export duties, taxes,
and other similar charges. The exemptions provided in this paragraph shall also extend to any duty, tax, or other similar
charges which would otherwise be assessed upon such property after importation into, or acquisition within, the
Philippines. Such property may be removed from the Philippines, or disposed of therein, provided that disposition of
such property in the Philippines to persons or entities not entitled to exemption from applicable taxes and duties shall
be subject to payment of such taxes, and duties and prior approval of the Philippine Government.

“2. Reasonable quantities of personal baggage, personal effects, and other property for the personal use of United States
personnel may be imported into and used in the Philippines free of all duties, taxes and other similar charges during the
period of their temporary stay in the Philippines. Transfers to persons or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the appropriate Philippine authorities including payment by the

5
recipient of applicable duties and taxes imposed in accordance with the laws of the Philippines. The exportation of such
property and of property acquired in the Philippines by United States personnel shall be free of all Philippine duties,
taxes, and other similar charges.

“Article VIII
Movement of Vessels and Aircraft

“1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the
Government of the Philippines in accordance with procedures stipulated in implementing arrangements.

“2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of vessels shall be in accordance with international custom and practice
governing such vessels, and such agreed implementing arrangements as necessary.

“3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be subject to the payment
of landing or port fees, navigation or over flight charges, or tolls or other use charges, including light and harbor dues,
while in the Philippines. Aircraft operated by or for the United States armed forces shall observe local air traffic control
regulations while in the Philippines. Vessels owned or operated by the United States solely on United States
Government non-commercial service shall not be subject to compulsory pilotage at Philippine ports.

“Article IX
Duration and Termination

“This agreement shall enter into force on the date on which the parties have notified each other in writing through the
diplomatic channel that they have completed their constitutional requirements for entry into force. This agreement shall
remain in force until the expiration of 180 days from the date on which either party gives the other party notice in
writing that it desires to terminate the agreement.”

Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators, non-governmental
organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute to herein respondents grave
abuse of discretion in ratifying the agreement.

We have simplified the issues raised by the petitioners into the following:

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the
VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel?

b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or higher?

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?

b. the Prohibition against nuclear weapons under Article II, Section 8?

c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the equipment,
materials supplies and other properties imported into or acquired in the Philippines by, or on behalf, of the US Armed
Forces?

6
LOCUS STANDI

At the outset, respondents challenge petitioner’s standing to sue, on the ground that the latter have not shown any
interest in the case, and that petitioners failed to substantiate that they have sustained, or will sustain direct injury as a
result of the operation of the VFA.[12] Petitioners, on the other hand, counter that the validity or invalidity of the VFA
is a matter of transcendental importance which justifies their standing.[13]

A party bringing a suit challenging the constitutionality of a law, act, or statute must show “not only that the law is
invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way.” He must show that he has
been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected
to some burdens or penalties by reason of the statute complained of.[14]

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained, or are in
danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers, petitioners have not
established that the VFA involves the exercise by Congress of its taxing or spending powers.[15] On this point, it bears
stressing that a taxpayer’s suit refers to a case where the act complained of directly involves the illegal disbursement of
public funds derived from taxation.[16] Thus, in Bugnay Const. & Development Corp. vs. Laron[17], we held:

“x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or
entitled to the avails of the suit as a real party in interest. Before he can invoke the power of judicial review, he must
specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and
that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient
that he has merely a general interest common to all members of the public.”

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation
by petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no legal
standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-legislators, do not
possess the requisite locus standi to maintain the present suit. While this Court, in Phil. Constitution Association vs.
Hon. Salvador Enriquez,[18] sustained the legal standing of a member of the Senate and the House of Representatives
to question the validity of a presidential veto or a condition imposed on an item in an appropriation bull, we cannot, at
this instance, similarly uphold petitioners’ standing as members of Congress, in the absence of a clear showing of any
direct injury to their person or to the institution to which they belong.

Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of Congress to
grant tax exemptions, are more apparent than real. While it may be true that petitioners pointed to provisions of the
VFA which allegedly impair their legislative powers, petitioners failed however to sufficiently show that they have in
fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases. As aptly
observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the absence of a board resolution
from its Board of Governors authorizing its National President to commence the present action.[19]

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of
the petitions, as we have done in the early Emergency Powers Cases,[20] where we had occasion to rule:

“x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued
by President Quirino although they were involving only an indirect and general interest shared in common with the
public. The Court dismissed the objection that they were not proper parties and ruled that ‘transcendental importance to
the public of these cases demands that they be settled 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).” (Underscoring Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21] Daza vs. Singson,[22] and Basco
vs. Phil. Amusement and Gaming Corporation,[23] where we emphatically held:

“Considering however the importance to the public of the case at bar, and in keeping with the Court’s duty, under the
1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the

7
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. x x x”

Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in cases of transcendental
importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct
injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of
powers, which enjoins upon the departments of the government a becoming respect for each others’ acts,[25] this Court
nevertheless resolves to take cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with
regard to the exercise by the senate of its constitutional power to concur with the VFA. Petitioners argue that Section
25, Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in
the Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA
is not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel
engaged in joint military exercises.

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or
international agreements. Section 21, Article VII, which herein respondents invoke, reads:

“No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate.”

Section 25, Article XVIII, provides:

“After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting State.”

Section 21, Article VII deals with treatise or international agreements in general, in which case, the concurrence of at
least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international
agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited
to, extradition or tax treatise or those economic in nature. All treaties or international agreements entered into by the
Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of
the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of
foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only
one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding
on the Philippines. Section 25, Article XVIII further requires that “foreign military bases, troops, or facilities” may be
allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes
cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting state.

It is our considered view that both constitutional provisions, far from contradicting each other, actually share some
common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory
in mandate and character. In particular, Section 21 opens with the clause “No treaty x x x,” and Section 25 contains the
phrase “shall not be allowed.” Additionally, in both instances, the concurrence of the Senate is indispensable to render
the treaty or international agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the
Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21,
Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.

8
On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of
the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops,
or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of
section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the
number of votes required to obtain the valid concurrence of the Senate, as will be further discussed hereunder.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one.
Lex specialis derogat generali. Thus, where there is in the same statute a particular enactment and also a general one
which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must
be operative, and the general enactment must be taken to affect only such cases within its general language which are
not within the provision of the particular enactment.[26]

In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:

“x x x that another basic principle of statutory construction mandates that general legislation must give way to a special
legislation on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions
are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a general
statute (De Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical application to a
particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).”

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure for the establishment of a military base. On this score, the
Constitution makes no distinction between “transient’ and “permanent”. Certainly, we find nothing in Section 25,
Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not distinguish- Ubi lex
non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign
military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said
constitutional provision reveals that the proscription covers “foreign military bases, troops, or facilities.” Stated
differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being
established. The clause does not refer to “foreign military bases, troops, or facilities” collectively but treats them as
separate and independent subjects. The use of comma and the disjunctive word “or” clearly signifies disassociation and
independence of one thing from the others included in the enumeration,[28] such that, the provision contemplates three
different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c)
foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986
Constitutional Commission, is consistent with this interpretation:

“MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country
does enter into such kind of a treaty, must it cover the three-bases, troops or facilities-or could the treaty entered into
cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirement will be
the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely
troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops.

9
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to
cover everything.”[29] (Underscoring Supplied)

Moreover, military bases established within the territory of another state is no longer viable because of the alternatives
offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels
that can stay afloat in the sea even for months and years without returning to their home country. These military
warships are actually used as substitutes for a land-home base not only of military aircraft but also of military personnel
and facilities. Besides, vessels are mobile as compared to a land-based military headquarters.

At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with
when the Senate gave its concurrence to the VFA.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following
conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate
and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the
Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in
the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since
Congress has not required it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be
valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand,
Section 25, Article XVIII simply provides that the treaty be “duly concurred in by the Senate.”

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required
so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section
25, Article XVIII requires, among other things, that the treaty-the VFA, in the instant case-be “duly concurred in by the
Senate,” it is very true however that said provision must be related and viewed in light of the clear mandate embodied
in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not
be treated in isolation to section 21, Article, VII.

As noted, the “concurrence requirement” under Section 25, Article XVIII must be construed in relation to the
provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under
Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with
the treaty-the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24) Senators.[30]
Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members, favorably acting on the
proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article VII.
The fact that there were actually twenty-three (23) incumbent Senators at the time the voting was made,[31] will not
alter in any significant way the circumstance that more than two-thirds of the members of the Senate concurred with the
proposed VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this regard,
the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to render
compliance with the strict constitutional mandate of giving concurrence to the subject treaty.

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass
upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America.

Petitioners content that the phrase “recognized as a treaty,” embodied in section 25, Article XVIII, means that the VFA
should have the advice and consent of the United States Senate pursuant to its own constitutional process, and that it
should not be considered merely an executive agreement by the United States.

In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the VFA is binding
on the United States Government is conclusive, on the point that the VFA is recognized as a treaty by the United States
of America. According to respondents, the VFA, to be binding, must only be accepted as a treaty by the United States.

10
This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or
acknowledges the agreement as a treaty.[32] To require the other contracting state, the United States of America in this
case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution,[33] is to accord strict
meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except
where technical terms are employed, in which case the significance thus attached to them prevails. Its language should
be understood in the sense they have in common use.[34]

Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because,
under international law, an executive agreement is as binding as a treaty.[35] To be sure, as long as the VFA possesses
the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument concluded
between States in written form and governed by international law, whether embodied in a single instrument or in two or
more related instruments, and whatever its particular designation.”[36] There are many other terms used for a treaty or
international agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international agreements included under the general term treaty have little or no
legal significance. Certain terms are useful, but they furnish little more than mere description.[37]

Article 2(2) of the Vienna Convention provides that “the provisions of paragraph 1 regarding the use of terms in the
present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in
the internal law of the State.”

Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon
states concerned, as long as the negotiating functionaries have remained within their powers.[38] International law
continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon
nations.[39]

In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the
Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,[40] we had occasion to pronounce:

“x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional
approval has been confirmed by long usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.

“x x x x x x x x x

“Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive
agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis
Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink,
315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law
Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby
on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218;
Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied)” (Emphasis Ours)

The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highly-
instructive:

“MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is concerned, that is
entirely their concern under their own laws.

FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty,
then as far as we are concerned, we will accept it as a treaty.”[41]

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the
United States government has fully committed to living up to the terms of the VFA.[42] For as long as the united States
of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under
the treaty, there is indeed marked compliance with the mandate of the Constitution.

11
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be
taken as a clear an unequivocal expression of our nation’s consent to be bound by said treaty, with the concomitant
duty to uphold the obligations and responsibilities embodied thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the
case may be, through which the formal acceptance of the treaty is proclaimed.[43] A State may provide in its domestic
legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States
agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification,
or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation.[44]

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The
role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.[45]

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the
Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,[46] declares that the Philippines adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of
its international relations. While the international obligation devolves upon the state and not upon any particular
branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations
committed by any branch or subdivision of its government or any official thereof. As an integral part of the community
of nations, we are responsible to assure that our government, Constitution and laws will carry out our international
obligation.[47] Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our
obligations, duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission
in 1949 provides: “Every State has the duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to
perform this duty.”[48]

Equally important is Article 26 of the convention which provides that “Every treaty in force is binding upon the parties
to it and must be performed by them in good faith.” This is known as the principle of pacta sunt servanda which
preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law,
supported by the jurisprudence of international tribunals.[49]

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power and performing a task
conferred upon him by the Constitution-the power to enter into and ratify treaties. Through the expediency of Rule 65
of the Rules of Court, petitioners in these consolidated cases impute grave abuse of discretion on the part of the chief
Executive in ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section 21, Article
VII of the Constitution.

On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or
to act at all in contemplation of law.[50]

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and
authority in the external affairs of the country. In many ways, the President is the chief architect of the nation’s foreign
policy; his “dominance in the field of foreign relations is (then) conceded.”[51] Wielding vast powers an influence, his
conduct in the external affairs of the nation, as Jefferson describes, is “executive altogether."[52]

As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President,
subject only to the concurrence of at least two-thirds vote of all the members of the Senate. In this light, the negotiation
of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in

12
the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself.
Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.[53] Consequently,
the acts or judgment calls of the President involving the VFA-specifically the acts of ratification and entering into a
treaty and those necessary or incidental to the exercise of such principal acts - squarely fall within the sphere of his
constitutional powers and thus, may not be validly struck down, much less calibrated by this Court, in the absence of
clear showing of grave abuse of power or discretion.

It is the Court’s considered view that the President, in ratifying the VFA and in submitting the same to the Senate for
concurrence, acted within the confines and limits of the powers vested in him by the Constitution. It is of no moment
that the President, in the exercise of his wide latitude of discretion and in the honest belief that the VFA falls within the
ambit of Section 21, Article VII of the Constitution, referred the VFA to the Senate for concurrence under the
aforementioned provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of
judgment, may be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for the
purpose of complying with the concurrence requirement embodied in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office.
Even if he erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article VII,
instead of Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or scarred, much less
be adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial inquiry into
areas normally left to the political departments to decide, such as those relating to national security, it has not altogether
done away with political questions such as those which arise in the field of foreign relations.[54] The High Tribunal’s
function, as sanctioned by Article VIII, Section 1, “is merely (to) check whether or not the governmental branch or
agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view. In the
absence of a showing… (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the
Court to exercise its corrective power…It has no power to look into what it thinks is apparent error.”[55]

As to the power to concur with treaties, the constitution lodges the same with the Senate alone. Thus, once the
Senate[56] performs that power, or exercises its prerogative within the boundaries prescribed by the Constitution, the
concurrence cannot, in like manner, be viewed to constitute an abuse of power, much less grave abuse thereof.
Corollarily, the Senate, in the exercise of its discretion and acting within the limits of such power, may not be similarly
faulted for having simply performed a task conferred and sanctioned by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in character;[57] the Senate, as an independent
body possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and
whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality
of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of separation of
powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their form
in a democratic government such as ours. The Constitution thus animates, through this treaty-concurring power of the
Senate, a healthy system of checks and balances indispensable toward our nation’s pursuit of political maturity and
growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are beyond
the ambit and province of the courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as the final arbiter
of legal controversies and staunch sentinel of the rights of the people - is then without power to conduct an incursion
and meddle with such affairs purely executive and legislative in character and nature. For the Constitution no less,
maps out the distinct boundaries and limits the metes and bounds within which each of the three political branches of
government may exercise the powers exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno, J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations with a petitioner, Sen. J.R. Salonga.

13
[1] Article V. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the
Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the
measure necessary to restore and maintain international peace and security.

[2] Joint Report of the Senate Committee on Foreign Relation and the Committee on National Defense and Security on
the Visiting Forces Agreement.

[3] Joint Committee Report.

[4] Petition, G.R. No. 138698, Annex “B”, Rollo, pp. 61-62.

“INSTRUMENT OF RATIFICATION

TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:

KNOW YE, that whereas, the Agreement between the government of the Republic of the Philippines and the
Government of the United States of America Regarding the Treatment of the United States Armed Forces Visiting the
Philippines, hereinafter referred to as VFA, was signed in Manila on 10 February 1998;

WHEREAS, the VFA is essentially a framework to promote bilateral defense cooperation between the Republic of the
Philippines and the United States of America and to give substance to the 1951 RP-US Mutual Defense Treaty (RP-US
MDT). To fulfill the objectives of the RP-US MDT, it is necessary that regular joint military exercises are conducted
between the Republic of the Philippines and the United States of America;

WHEREAS, the VFA seeks to provide a conducive setting for the successful conduct of combined military exercises
between the Philippines and the United States armed forces to ensure interoperability of the RP-US MDT;

WHEREAS, in particular, the VFA provides the mechanism for regulating the circumstances and conditions under
which US armed forces and defense personnel may be present in the Philippines such as the following inter alia:

(a) specific requirements to facilitate the admission of United States personnel and their departure from the Philippines
in connection with activities covered by the agreement;

(b) clear guidelines on the prosecution of offenses committed by any member of the United States armed forces while
in the Philippines;

(c) precise directive on the importation and exportation of United States Government equipment, materials, supplies
and other property imported into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities covered by the Agreement; and

(d) explicit regulations on the entry of United States vessels, aircraft, and vehicles;

WHEREAS, Article IX of the Agreement provides that it shall enter into force on the date on which the Parties have
notified each other in writing, through diplomatic channels, that they have completed their constitutional requirements
for its entry into force. It shall remain in force until the expiration of 180 days from the date on which either Party gives
the other Party written notice to terminate the Agreement.

NOW, THEREFORE, be it known that I, JOSEPH EJERCITO ESTRADA, President of the Republic of the
Philippines, after having seen and considered the aforementioned Agreement between the Government of the United
States of America Regarding the Treatment of the United States Armed Forces Visiting the Philippines, do hereby
ratify and confirm the same and each and every Article and Clause thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be
affixed.

GIVEN under my hand at the City of Manila, this 5th day of October, in the year of Our Lord one thousand nine
hundred and ninety-eight.

[5] Petition, G.R. No. 138587, Annex “C”, Rollo, p. 59.

The Honorable Senate President and

Member of the Senate

14
Senate of the Philippines
Pasay City

Gentlemen and Ladies of the Senate:

I have the honor to transmit herewith the Instrument of Ratification duly signed by H.E. President Joseph Ejercito
Estrada, his message to the Senate and a draft Senate Resolution of Concurrence in connection with the ratification of
the AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES AND THE
GOVERNMENT OF THE UNITED STATES OF AMERICA REGARDING THE TREATMENT OF THE UNITED
STATES ARMED FORCES VISITING THE PHILIPPINES.

With best wishes.

Very truly yours,

RONALDO B. ZAMORA
Executive Secretary

[6] Petition, G.R. No. 138698, Annex “C”.

[7] Between January 26 and March 11, 1999, the two Committees jointly held six public hearings-three in Manila and
one each in General Santos, Angeles City and Cebu City.

[8] Petition , G.R. No. 138570, Annex “C”, Rollo, pp. 88-95.

“WHEREAS, the VFA is essentially a framework for promoting the common security interest of the two countries; and
for strengthening their bilateral defense partnership under the 1951 RP-US Mutual Defense Treaty;

“x x x x x x x x x

“WHEREAS, the VFA does not give unrestricted access or unhampered movement to US Forces in the Philippines; in
fact, it recognizes the Philippine government as the sole authority to approve the conduct of any visit or activity in the
country by US Forces, hence the VFA is not a derogation of Philippine sovereignty;

“WHEREAS, the VFA is not a basing arrangement; neither does it pave way for the restoration of the American bases
and facilities in the Philippines, in contravention of the prohibition against foreign bases and permanent stationing of
foreign troops under Article XVIII, Section 25 of the 1987 Constitution-because the agreement envisions only
temporary visits of US personnel engaged in joint military exercises or other activities as may be approved by the
Philippine Government;

“WHEREAS, the VFA gives Philippine courts primary jurisdiction over offenses that may be committed by US
personnel within Philippine territory, with the exception of those incurred solely against the security or property of the
Us or solely against the person or property of US personnel, and those committed in the performance of official duty;

“x x x x x x x x x

“WHEREAS, by virtue of Article II of the VFA, the United States commits to respect the laws of the Republic of the
Philippines, including the Constitution, which declares in Article II, Section 8 thereof, a policy of freedom from nuclear
weapons consistent with the national interest;

“WHEREAS, the VFA shall serve as the legal mechanism to promote defense cooperation between two countries-
enhancing the preparedness of the Armed Forces of the Philippines against external threats; and enabling the
Philippines to bolster the stability of the Pacific area in a shared effort with its neighbor-states;

“WHEREAS, the VFA will enhance our political, economic and security partnership and cooperation with the United
States-which has helped promote the development of our country and improved the lives of our people;

“WHEREAS, in accordance with the powers and functions of Senate as mandated by the Constitution, this Chamber,
after holding several public hearings and deliberations, concurs in the President’s ratification of the VFA, for the
following reasons:

15
(1) The Agreement will provide the legal mechanism to promote defense cooperation between the Philippines and the
U.S. and thus enhance the tactical, strategic, and technological capabilities of our armed forces;

(2) The Agreement will govern the treatment of U.S., military and defense personnel within Philippine territory, while
they are engaged in activities covered by the Mutual Defense Treaty and conducted with the prior approval of the
Philippine government; and

(3) The Agreement will provide the regulatory mechanism for the circumstances and conditions under which U.S.
military forces may visit the Philippines; x x x

“x x x x x x x x x

“WHEREAS, in accordance with Article IX of the VFA, the Philippine government reserves the right to terminate the
agreement unilaterally once it no longer redounds to our national interest: Now, therefore, be it

“Resolved, that the Senate concur, as it hereby concurs, in the Ratification of the Agreement between the Government
of the Republic of the Philippines and the United States of America Regarding the Treatment of United States Armed
Forces visiting the Philippines. x x x”

[9] The following voted for concurrence: (1) Senate President Marcelo Fernan, (2) Senate President Pro Tempore Blas
Ople, (3) Senator Franklin Drilon, (4) Senator Rodolfo Biazon, (5) Senator Francisco Tatad, (6) Senator Renato
Cayetano, (7) Senator Teresa Aquino-Oreta, (8) Senator Robert Barbers, (9) Senator Robert Jaworski, (10) Senator
Ramon Magsaysay, Jr., (11) Senator John Osmeña, (12) Senator Juan Flavier, (13) Senator Mirriam Defensor-Santiago,
(14) Senator Juan Ponce-Enrile, (15) Senator Vicente Sotto III, (16) Senator Ramon Revilla, (17) Senator Anna
Dominique Coseteng, and (18) Senator Gregorio Honasan.

Only the following voted to reject the ratification of the VFA: (1) Senator Teofisto Guingona, Jr., (2) Senator Raul
Roco, (3) Senator Sergio Osmena III, (4) Senator Aquilino Pimentel, Jr., and (5) Senator Loren Legarda-Leviste.

[10] See Petition, G.R. No. 138570, Rollo, pp. 105.

[11] Minute Resolution dated June 8, 1999.

[12] See Consolidated Comment.

[13] Reply to Consolidated Comment, G.R. No. 138698; G.R. No. 138587.

[14] Valmonte vs. Philippine Charity Sweepstakes Office, (Res.) G.R. No. 78716, September 22, 1987, cited in
Telecommunications and Broadcast Attorneys of the Philippines, Inc. vs. COMELEC, 289 SCRA 337, 343 [1998];
Valley Forge College vs. Americans United, 454 US 464, 70 L. Ed. 2d 700 [1982]; Bugnay Const. And Dev. Corp. vs.
Laron, 176 SCRA 240, 251-252 [1989]; Tatad vs. Garcia, Jr. 243 SCRA 436, 473 [1995].

[15] See Article VI, Sections 24, 25 and 29 of the 1987 Constitution.

[16] Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]; Maceda vs. Macaraig, 197 SCRA 771 [1991];
Lozada vs. COMELEC, 120 SCRA 337 [1983]; Dumlao vs. COMELEC, 95 SCRA 392 [1980]; Gonzales vs. Marcos,
65 SCRA 624 [1975].

[17] 176 SCRA 240, 251-252 [1989].

[18] 235 SCRA 506 [1994].

[19] Consolidated Memorandum, p. 11.

[20] Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay & Corn Planters Association vs. Feliciano, 121 Phil. 358
[1965]; Philippine Constitution Association vs. Gimenez, 122 Phil. 894 [1965].

[21] 21 SCRA 774 [1967].

[22] 180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs. Guingona, Jr., 232 SCRA 110 [1994].

[23] 197 SCRA 52, 60 [1991].

16
[24] 232 SCRA 110 [1994].

[25] J. Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261 [1992].

[26] Manila Railroad Co. vs. Collector of Customs, 52 Phil. 950.

[27] 157 SCRA 282 [1988] cited in Republic vs. Sandiganbayan, 173 SCRA 72, 85 [1989].

[28] Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).

[29] Records of the Constitutional Commission, September 18, 1986 Deliberation, p. 782.

[30] 1987 Constitution, Article VI, Section 2. - the Senate shall be composed of twenty-four Senators who shall be
elected at large by the qualified voters of the Philippines, as may be provided by law.

[31] The 24th member (Gloria Macapagal-Arroyo) of the Senate whose term was to expire in 2001 was elected Vice-
President in the 1998 national elections.

[32] Ballentine’s Legal Dictionary, 1995.

[33] Article 2, Section 2, paragraph 2 of the United States Constitution, speaking of the United States President
provides: “He shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds
of the senators present concur.”

[34] J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31 SCRA 413 [1970].

[35] Altman Co. vs. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago, International Law, 1998
Ed. P. 497.

[36] Vienna Convention, Article 2.

[37] Gerhard von Glahn, Law among Nations, an Introduction to Public International Law, 4th Ed., p. 480.

[38] Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans Association Inc. vs. Treasurer of
the Philippines, 105 Phil. 1030, 1037 [1959].

[39] Richard J. Erickson, “The Making of Executive Agreements by the United States Department of Defense: An
agenda for Progress,” 13 Boston U. Intl. L.J. 58 [1995], citing Restatement [third] of Foreign Relations Law pt. III,
introductory note [1987] and Paul Reuter, Introduction to the Law of Treaties 22 [Jose Mico & Peter Haggemacher
trans., 1989] cited in Consolidated Memorandum, p. 32.

[40] 3 SCRA 351, 356-357 [1961].

[41] 4 Record of the Constitutional Commission 782 [Session of September 18, 1986].

[42] Letter of Ambassador Hubbard to Senator Miriam Defensor-Santiago:

“Dear Senator Santiago:

I am happy to respond to your letter of April 29, concerning the way the US Government views the Philippine-US
Visiting Forces Agreement in US legal terms. You raise an important question and I believe this response will help in
the Senate deliberations.

As a matter of both US and international law, an international agreement like the Visiting Forces Agreement is legally
binding on the US Government, In international legal terms, such an agreement is a ‘treaty.’ However, as a matter of
US domestic law, an agreement like the VFA is an ‘executive agreement,’ because it does not require the advice and
consent of the senate under Article II, section 2 of our Constitution.

The President’s power to conclude the VFA with the Philippines, and other status of forces agreements with the other
countries, derives from the President’s responsibilities for the conduct of foreign relations (Art. II, Sec. 1) and his
constitutional powers as Commander in Chief of the Armed Forces. Senate advice and consent is not needed, inter alia,

17
because the VFA and similar agreements neither change US domestic nor require congressional appropriation of funds.
It is important to note that only about five percent of the international agreement entered into by the US Governments
require Senate advice and consent. However, in terms of the US Government’s obligation to adhere to the terms of the
VFA, there is no difference between a treaty concurred in by our Senate and an executive agreement. Background
information on these points can be found in the ‘Restatement 3rd of the Foreign Relations Law of the United States,’
Sec. 301, et seq. [1986].

I hope you find this answer helpful. As the President’s representative to the Government of the Philippines, I can assure
you that the United States Government is fully committed to living up to the terms of the VFA.

Sincerely yours,

THOMAS C. HUBBARD
Ambassador”

[43] Gerhard von Glahn, Law Among Nations, An Introduction to Public International Law, 4th Ed., p. 486.

[44] Article 14 of the Vienna Convention, cited in Coquia and Defensor-Santiago, Intenational Law, 1998 Ed., pp. 506-
507.

[45] Cruz, Isagani, “International Law”, 1985 Ed., p. 175.

[46] Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles
of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.

[47] Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials, 2nd Ed
American Casebook Series, p. 136.

[48] Gerhard von Glah, supra, p. 487.

[49] Harris, p. 634 cited in Coquia, International Law, supra, p. 512.

[50] Cuison vs. CA, 289 SCRA 159 [1998]. See also Jardine vs. NLRC, G.R. No. 119268, Feb 23, 2000 citing Arroyo
vs. De Venecia, 277 SCRA 268 [1997].

[51] Cortes, “The Philippine Presidency a study of Executive Power, 2nd Ed.,” p. 195.

[52] Cruz, Phil. Political Law, 1995 Ed., p. 223.

[53] United States vs. Curtis Wright Corp., 299 U.S. 304 (1934), per Justice Sutherland.

[54] Arroyo vs. De Venecia, 277 SCRA 269 [1997].

[55] Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 701 (1991); Llamas vs. Orbos, 202
SCRA 849, 857 (1991); Lansang vs. Garcia, 42 SCRA at 480-481 [1971].

[56] 1987 Constitution, Article VI, Section 1. - The legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the
provision on initiative and referendum.

[57] See Akehurst, Michael: Modern Introduction to International Law, (London: George Allen and Unwin) 5th ed., p.
45; United States vs. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936)

18
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-
ARROYO, and HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents.

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

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,

vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.

DISSENTING OPINION

SEPARATE OPINION

DE LEON, JR., J.:

This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that respondents
be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and hearing, that judgment
be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan
and Mindanao for being illegal and in violation of the Constitution.

The facts are as follows:

Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving
in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1." These so-called "Balikatan"
exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a
simulation of joint military maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement entered
into by the Philippines and the United States in 1951.

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal agreement
relative to the treatment of United States personnel visiting the Philippines. In the meantime, the respective
governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was
eventually cured when the two nations concluded the Visiting Forces Agreement (V FA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign
declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On that
day, three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade Center
in New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the
Base"), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no comparable historical
parallels, these acts caused billions of dollars worth of destruction of property and incalculable loss of hundreds of
lives.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition,
attacking the constitutionality of the joint exercise.2 They were joined subsequently by SANLAKAS and PARTIDO
NG MANGGAGAWA, both party-Iist organizations, who filed a petition-in-intervention on February 11, 2002.

Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the
other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be
directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules
relative to locus standi citing the unprecedented importance of the issue involved.

19
On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T.
Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented the Draft Terms of Reference (TOR).3 Five
days later, he approved the TOR, which we quote hereunder:

I. POLICY LEVEL

1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in consonance with the
laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global
terrorism as understood by the respective parties.

3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop
billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise.

4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of
Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US
Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-
Directors. RP and US participants shall comply with operational instructions of the AFP during the FTX.

5. The exercise shall be conducted and completed within a period of not more than six months, with the projected
participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors
to wind up and terminate the Exercise and other activities within the six month Exercise period.

6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts
against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall
be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise.

7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field, commanders. The
US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they
can observe and assess the performance of the AFP Forces.

8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense.

9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations
between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with
the primary objective of enhancing the operational capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall
acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VF A. The briefing shall
also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise.

b. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of
their resources, equipment and other assets. They will use their respective logistics channels.

c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources.

d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors.

3. PUBLIC AFFAIRS

20
a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at
GHQ, AFP in Camp Aguinaldo, Quezon City.

b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by
RP and US Forces.

c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with
their respective laws and regulations, and in consultation with community and local government officials.

Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d'
Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary
Kelly.4

Petitioners Lim and Ersando present the following arguments:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951
TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL
PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL
AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN
BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN
ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON".

Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.

In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersando's
standing to file suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a
question of fact. Anent their locus standi, the Solicitor General argues that first, they may not file suit in their capacities
as, taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or
spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the case, citing
our ruling in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and Ersando have failed to demonstrate the
requisite showing of direct personal injury. We agree.

It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that since the
Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues raised by petitioners are
premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners' resort to a
special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts.

Apart from these threshold issues, the Solicitor General claims that there is actually no question of constitutionality
involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General
asks that we accord due deference to the executive determination that "Balikatan 02-1" is covered by the VFA,
considering the President's monopoly in the field of foreign relations and her role as commander-in-chief of the
Philippine armed forces.

Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related
case:

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of
the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to rule:

'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued
by President Quirino although they were involving only an indirect and general interest shared in common with the

21
public. The Court dismissed the objection that they were not proper parties and ruled that 'transcendental importance to
the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities
of procedure.' We have since then applied the exception in many other cases. [citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and Basco vs. Phil,
Amusement and Gaming Corporation, where we emphatically held:

Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the
1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the
limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance of this petition. xxx'

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental
importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct
injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of
powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court
nevertheless resolves to take cognizance of the instant petition.6

Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate,
petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and
the duration of their stay has been addressed in the Terms of Reference.

The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines
bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the
"core" of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to
enhance the strategic and technological capabilities of our armed forces through joint training with its American
counterparts; the "Balikatan" is the largest such training exercise directly supporting the MDT's objectives. It is this
treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-
Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that
on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA.7 The V FA provides the
"regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the
Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to
entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation
and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the
VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the
promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a
common foe.

The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces Agreement.
To resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the
terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an
impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only to the approval of the Philippine government.8 The sole
encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any
activity inconsistent with the spirit of this agreement, and in particular, from any political activity."9 All other
activities, in other words, are fair game.

We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos
governing interpretations of international agreements, state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the
treaty in their context and in the light of its object and purpose.

22
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its
preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the
treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted
by the other parties as an instrument related to the party .

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its
provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its
interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article 31 :

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is
presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the
meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account
alongside the aforesaid context. As explained by a writer on the Convention ,

[t]he Commission's proposals (which were adopted virtually without change by the conference and are now reflected in
Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be
the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the
view that 'the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio
into the intentions of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the circumstances of its
conclusion, are relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid
temporal prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary
means of interpretation' in what is now Article 32 of the Vienna Convention. The distinction between the general rule
of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary
means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.1O

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word .'activities"
arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation.
In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived,
the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine
resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects
such as the building of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume
that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense

23
Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself -such as the one
subject of the instant petition, are indeed authorized.

That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of the VFA, what
may US forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort
against terrorism? Differently phrased, may American troops actually engage in combat in Philippine territory? The
Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not
engage in combat "except in self-defense." We wryly note that this sentiment is admirable in the abstract but difficult in
implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the
battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have
the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing
the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum."11 The indirect violation
is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the United
States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the
exercise. A clear pronouncement on this matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive war on
Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the
following Principles.

xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity
or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and
international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In
particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in
effect as a valid source of international obligation. The present Constitution contains key provisions useful in
determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of
Principles and State Policies, it is provided that:

xxx xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.

xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount
consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear
weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty or
international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate."12 Even more pointedly, the Transitory Provisions state:

Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the

24
votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting state.

The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign
influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception.
Conflict arises then between the fundamental law and our obligations arising from international agreements.

A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in Philip Morris,
Inc. v. Court of Appeals,13 to wit:

xxx Withal, the fact that international law has been made part of the law of the land does not by any means imply the
primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied
in most countries, rules of international law are given a standing equal, not superior, to national legislation.

This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one
law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches
may offer valuable insights.

From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of
pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in
good faith."14 Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for
its failure to perform a treaty."15

Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII:

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide,
final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or amendment by
a subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova,17

xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that
the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII
thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on
appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior
courts in -( I) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question." In other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on
Philippine territory.

Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers under the
guise of an alleged training and assistance exercise? Contrary to what petitioners would have us do, we cannot take
judicial notice of the events transpiring down south,18 as reported from the saturation coverage of the media. As a rule,
we do not take cognizance of newspaper or electronic reports per se, not because of any issue as to their truth, accuracy,
or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence. As a
result, we cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo government is engaged
in "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign troops on native soil.
The petitions invite us to speculate on what is really happening in Mindanao, to issue I make factual findings on
matters well beyond our immediate perception, and this we are understandably loath to do.

25
It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must concur
with the Solicitor General that the present subject matter is not a fit topic for a special civil action for certiorari. We
have held in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ
is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise
meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a
virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an
arbitrary and despotic manner by reason of passion and personal hostility."19

In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20

Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government."21 From the facts obtaining, we find that the holding of "Balikatan 02-1"
joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on our part.
In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess
of jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a
new petition sufficient in form and substance in the proper Regional Trial Court.

SO ORDERED.

Bellosillo, Melo, Mendoza, Quisumbing, Carpio, JJ., concur.

Kapunan, dissenting opinion.

Ynares-Santiago, join the dissenting opinion.

Panganiban, separate opinion.

Davide., Jr., C.J., Puno, Sandoval-Gutierrez, join the main and separate opinion of J. Panganiban.

Footnotes

1 For ready reference, the text of the treaty is reproduced herein:

"MUTUAL DEFENSE TREATY

BETWEEN THE REPUBLIC OF THE PHILIPPINES

AND THE UNITED STATES OF AMERICA

30 August 1951

"The parties to this Treaty,

'"Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live in
peace with all peoples and all Governments, and desiring to strengthen the fabric of peace in the Pacific Area,

"Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond of
sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war,

"Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves
against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone
in the Pacific Area,

"Desiring further to strengthen their present efforts for collective defense for the preservation of peace and security
pending the development of a more comprehensive system of regional security in the Pacific Area,

26
"Agreeing that nothing in this present instrument shall be considered or interpreted as in any way , or sense altering or
diminishing any existing agreements or understandings between the United States of America and the Republic of the
Philippines,

"Have agreed as follows:

"ARTICLE I.

"The Parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which
they may be involved by peaceful means in such a manner that international peace and security and justice are not
endangered and to refrain in their international relations from the threat or use of force in any manner inconsistent with
the purpose of the United Nations.

"ARTICLE II.

"In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and
mutual aid will maintain and develop their individual and collective capacity to resist armed attack.

"ARTICLE III.

"The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the
implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external.'

I armed attack in the Pacific.

"ARTICLE IV.

"Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own
peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional
processes.

" Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security
Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures
necessary to restore and maintain international peace and security.

"ARTICLE V.

"For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an attack on the
metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its
armed forces, public vessels or aircraft used in the Pacific.

"ARTICLE VI.

"This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties
under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international
peace and security.

"ARTICLE VII.

"This Treaty shall be ratified by the United States of America and the Republic of the Philippines in accordance with
their respective constitutional processes and will come into force when instruments of ratification thereof have been
exchanged by them at Manila.

"ARTICLE VIII.

"This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the
other party.

"IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.

"DONE in duplicate at Washington this thirtieth day of August, 1951."

27
xxx xxx xxx xxx

2 The day before, the first petition in connection with the joint military enterprise was filed --G.R. No.151433, entitled
"In the Matter of Declaration as Constitutional and Legal the 'Balikatan' RP- US Military Exercises." Petitioner therein
Atty. Eduardo B. Inlayo manifested that he would be perfectly "comfortable" should the Court merely "note" his
petition. We did not oblige him; in a Resolution dated February 12, 2002, we dismissed his petition on the grounds of
insufficiency in form and substance and lack of jurisdiction. After extending a hearty Valentine's greeting to the Court
en banc, Atty. Inlayo promised to laminate the aforesaid resolution as a testimonial of his "once upon a time"
participation in an issue of national consequence.

3 Annex 1 of the Comment.

4 Annex 2 of the Comment. The Minutes state:

"Secretary Guingona and Assistant Secretary Kelly welcomed the holding of Balikatan 02-1 exercise ('the Exercise")
and the conclusion of the Terms of Reference for the Exercise. Assistant Secretary Kelly thanked Secretary Guingona
for Secretary Guingona's personal approval of the Terms of Reference.

"Both Secretary Guingona and Assistant Secretary Kelly emphasized the importance of cooperating, within the bounds
provided for by their respective constitutions and laws, in the fight against international terrorism.

"Both Secretary Guingona and Assistant Secretary Kelly expressed the belief that the Exercise shall not in any way
contribute to any escalation of other conflicts in Mindanao, shall not adversely affect the progress of ongoing peace
negotiations between the Government of the Philippines and other parties, and shall not put at risk the friendly relations
between the Philippines and its neighbors as well as with other states. Secretary Guingona stated that he had in mind
the ongoing peace negotiations with the NDF and the MILF and he emphasized that it is important to make sure that
the Exercsie shall not in any way hinder those negotiations.

"Both Secretary Guingona and Assistant Secretary Kelly stated that they look forward to the realization of the nearly
US$100 million in security assistance for fiscal years 2001-2002 agreed upon between H.E. President Gloria
Macapagal-Arroyo and H.E. President George W. Bush last November 2001.

"Secretary Guingona stated that the Philippines welcomes the assistance that the U.S. will be providing, saying that
while Filipino soldier does not lack experience, courage and determination, they could benefit from additional
knowledge and updated military technologies.

"Assistant Secretary Kelly said that he is glad the U.S. is able to provide advice, assistance and training and reiterated
the policy position expressed by H.E. President George W. Bush during his State of the Nation Address that U.S. forces
are in the Philippines to advise, assist and train Philippine military forces.

"Both Secretary Guingona and Assistant Secretary Kelly reiterated that, as provided in the Terms of Reference, U.S.
Forces shall not engage in combat during the Exercise, except in accordance with their right to act in self-defense.

Both Secretary Guingona and Assistant Secretary Kelly reiterated that, pursuant to Article II of the Visiting Forces
Agreement, U.S. forces are bound to respect the laws of the Philippines during the Exercise.

"Both Secretary Guingona and Assistant Secretary Kelly recognized that, pursuant to Article VI of the Visiting Forces
Agreement, both the U.S. and Philippine Governments waive any and all claims against the other for any deaths or
injuries to their military and civilian personnel from the Exercise.

"Secretary Guingona and Assistant Secretary Kelly designated Ambassador Minerva Falcon and Charge d' Affaires, a.i.
Robert Fitts to initial these minutes.

"Both Secretary Guingona and Assistant Secretary Kelly agreed to consult from time to time on matters relating to the
Exercise as well as on other matters."

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of
the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to rule:

5 338 SCRA 81, 100-101 (2000).

28
'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued
by President Quirino although they were involving only an indirect and general interest shared in common with the
public. The Court dismissed the objection that they were not proper parties and ruled that 'transcendental importance to
the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities
of procedure. ' We have since then applied the exception in many other cases. [ citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and Basco vs. Phil.
Amusement and Gaming Corporation, where we emphatically held:

'Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the
1987 Constitution, to detemine whether or not the other branches of the governrnent have kept themselves within the
limits of the Constitution and the laws that that they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of this petition.xxx

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of i transcendental
importance, the Court may relax the standing requirements and allow a suit to prosper even , where there is no direct
injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of separation, of
powers, which enjoins upon the departments of the government a becoming respect for each others' acts, this Court
nevertheless resolves to take cognizance of the instant petitions.6

6 BAYAN, et. al. Y. Zamora, 342 SCRA 449 (2000).

7 BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 (2000).

8 Article I [Definitions], VFA.

9 Article II [Respect for Law], VFA.

10 l.M. SINCLA1R, THE VIENNA CONVENTION ON THE LAW OF TREATIES 71-72 (1973).

II "No one is allowed to do indirectly what he is prohibited to do directly." 12 Sec. . 12 SEC.21, Art. VII.

13 224 SCRA 576, 593 (1993).

14 Vienna Convention on the Law of Treaties, art. 26.

15 Id, art. 27. However, this is without prejudice to the provisions of art. 46 of the Convention, which provides:

"1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a
provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation
was manifest and concerned a rule of its internal law of fundamental importance.

"2. A violation is manifest if it would be objectively evident to any State conducting itself in the manner in accordance
with normal practice and in good faith."

16 101 Phil. 1155, 1191 (1957).

17 9 SCRA 230,242 (1963).

18 Pertinent sections of Rule 129 provide: "SECTION I. Judicial notice, when mandatory.-A court shall take judicial
notice, without the introduction of evidence, of the existence and territorial extent of states, their political history ,
forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and
their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and
judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions."
Likewise, it is also provided in the next succeeding section: "SEC. 2. Judicial notice, when discretionary.-A court may
take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought
to be known to judges because of their judicial functions."

19 Sanchez v. National Labor Relations Commission, 312 SCRA 727 ( 1999).

29
20 Hervas v. Court of Appeals, 319 SCRA 776 (1999); Valmonte v. Court of Appeals, 303 SCRA 278 ( 1999).
1âwphi1.nêt

21 Article VIII, section 1.

The Lawphil Project - Arellano Law Foundation

EN BANC

G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY PRESIDENT GLORIA
MACAPAGAL-ARROYO and HONORABLE ANGELO REYES in his official capacity as Secretary of National
Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.

DISSENTING OPINION

KAPUNAN, J.:

On September 11, 2001, terrorists, with the use of hijacked commercial airplanes, attacked the World Trade Center
Building in New York City and the Pentagon Building in Washington D.C., U.S.A., killing thousands of people.

Following the attacks, the United States declared a "global war" against terrorism and started to bomb and attack
Afghanistan to topple the Taliban regime and capture Osama bin Laden, the suspected mastermind of the September
11, 2001 attacks. With the Northern Alliance mainly providing the ground forces, the Taliban regime fell in a few
months, without Osama bin Laden having been captured. He is believed either to be still in Afghanistan or has crossed
the border into Pakistan.

In line with President Gloria Macapagal-Arroyo's pledge to render all-out aid to the US in its campaign against "global
terrorism," an arrangement for a. joint military exercises known as "RP-US Balikatan 02-1 Exercises" was entered into
between the US and Philippine authorities, allegedly within the ambit of the Visiting Forces Agreement (V FA) with
the main objective of enhancing the operational capabilities of the countries in combating terrorism. The US
government has identified the Abu Sayyaf Group (ASG) in the Philippines as a terrorist group forming part of a
"terrorist underground" linked to the al-Qaeda network of Osama bin Laden.

Beginning January 21, 2002, American troops started arriving in Mindanao as part of the total contingent force of 660
soldiers, 160 to be stationed in Basilan, 200 to 250 in Zamboanga, and 250 in the Air Force base in Mactan, Cebu.

The salient features of the joint military exercises as embodied in the Terms of Reference (TOR) are summarized as
follows:

(a) The exercise shall be consistent with the Constitution and other Philippine laws, particularly the RP-US Visiting
Forces Agreement;

(b) No permanent US bases and support facilities will be established;

(c) The exercise shall be implemented jointly by RP and US Exercise Co-Directors under the direction of the Chief of
Staff of the AFP and in no instance will US Forces operate independently during field training exercises;

(d) It shall be conducted and completed within a period of not more than six months, with the projected participation of
660 US personnel and 3,800 RP forces, and the Chief of Staff of the AFP shall direct the Exercise Co-Directors to wind
up the Exercise and other activities and the withdrawal of US forces within the six-month period;

(e) The exercise "is a mutual counter-terrorism advising, assisting and training exercise" relative to Philippine efforts
against the Abu Sayyaf Group and will be conducted on the Island of Basilan. Further advising, assisting and training

30
exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will also be conducted in
support of the Exercise;

(f) Only 160 US troops organized in 12-man Special Forces Teams shall be deployed in Basilan, with the US Team
remaining at the Company Tactical Headquarters where they can observe and assess the performance of the troops; and

(g) US exercise participants shall not engage in combat, without prejudice to their right to self-defense.

Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from participating in areas of
armed conflict on the ground that such is in gross violation of the Constitution. They argue that:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) IN 1951
TO PROVIDE MUTUAL MILITARY ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL
PROCESSES" OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL
AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN
BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECTED THE PHILIPPINES TO AN
ARMED EXTERNAL ATTACK TO WARRANT US MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON."

Sanlakas and Partido ng Manggagawa as intervenors seek the same relief as petitioners, stressing that the Constitution
prohibits the presence of foreign military troops or facilities in the country, except under a treaty duly concurred in by
the Senate and recognized as a treaty by the other state.

The petition is impressed with merit.

There is no treaty allowing

US troops to engage in combat.

The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the same. Section 25,
Article XVIII of the Constitution provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting State.

There is no treaty allowing foreign military troops to engage in combat with internal elements.

The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United States of America does not
authorize US military troops to engage the ASG in combat. The MDT contemplates only an "external armed attack."
Article III of the treaty cannot be more explicit:

The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the
implementation of this treaty and whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external armed attack in the Pacific. [Emphasis
supplied.]

Supporting this conclusion is the third paragraph of the MDT preamble where the parties express their desire

to declare publicly and formally their sense of unity and their common determination to defend themselves against
external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the
Pacific area. [Emphasis supplied.]

31
There is no evidence that
the ASG is connected with
"global terrorism."

There is no empirical basis for the allegation that the "terrorism" which the ASG is accused of constitutes an "external
armed attack." The ASG has committed mostly crimes of kidnapping for ransom and murder - common crimes that are
punishable under the penal code but which, by themselves, hardly constitute "terrorism."

Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed, one man's terrorist may be
another man's freedom fighter. The divergent interests of States have caused contradicting definitions and conflicting
perceptions of what constitutes "terrorist acts" that make it difficult for the United Nations to reach a decision on the
definition of terrorism. Because of this "definitional predicament," the power of definition is easily exercised by a
superpower which, by reason of its unchallenged hegemony, could draw lists of what it considers terrorist organizations
or states sponsoring terrorism based on criteria determined by the hegemon's own strategic interests.1

In any case, ties between the ASG and so-called international "terrorist" organizations have not been established.2 Even
assuming that such ties do exist, it does not necessarily make the "attacks" by the ASG "external" as to fall within the
ambit of the MDT.

Balikatan exercises are

not covered by VFA as
US troops are not
allowed to engage in combat.

Neither is the present situation covered by the so-called Visiting Forces Agreement (VFA). The V FA was concluded
after the removal of the US military bases, troops and facilities in the aftermath of the termination of the treaty allowing
the presence of American military bases in the Philippines. The VF A is nothing more than what its formal name
suggests: an "Agreement between the Government of the Republic of the Philippines and the Government of the United
States of America regarding the Treatment of United States Armed Forces Visiting the Philippines. "The last paragraph
of the V FA preamble also "recogniz[es] the desirability of defining the treatment of United States personnel visiting
the Republic of the Philippines."

The VFA was entered into to enable American troops to enter the country again after the removal of the American
military bases so they can participate in military exercises under the auspices of the Mutual Defense Treaty. It provided
the legal framework under which American soldiers will be treated while they remain in the country.

The military exercises contemplated in the VFA are those in accordance with the National Defense Plan (NDP) of the
Philippines. The NDP was previously approved and adopted by the Mutual Defense Board, jointly chaired by the Chief
of Staff of the Armed Forces of the Philippines and the Commander in the Pacific of the United States Armed Forces.

The NDP is directed against potential foreign aggressors, not designed to deal with internal disorders. This was what
the Senate understood when it ratified the VFA in Senate Resolution No. 18, which reads:

The VFA shall serve as the legal mechanism to promote defense cooperation between the two countries, enhancing the
preparedness of the Armed Forces of the Philippines against external threats; and enabling the Philippines to bolster the
stability of the Pacific Area in a shared effort with its neighbor states.

The VFA's ambiguous reference to "activities"3 is not a loophole that legitimizes the presence of US troops in Basilan.
In the treaty's preamble, the parties "reaffirm their obligations under the Mutual Defense Treaty of August 30, 1951."
As the preamble comprises part of a treaty's context for the purpose of interpretation, the VFA must be read in light of
the provisions of the MDT. As stated earlier, the MDT contemplates only an external armed attack; consequently, the
"activities" referred to in the V FA cannot thus be interpreted to include armed confrontation with or suppression of the
ASG members who appear to be mere local bandits, mainly engaged in kidnapping for ransom and murder -even arson,
extortion and illegal possession of firearms, all of which are common offenses under our criminal laws. These activities
involve purely police matters and domestic law and order problems; they are hardly "external" attacks within the
contemplation of the MDT and the V FA. To construe the vagueness of the term "activities" in the V FA as authorizing
American troops to confront the ASG in armed conflict would, therefore, contravene both spirit and letter of the MDT.

Respondents maintain that the American troops are not here to fight the ASG but merely to engage in "training
exercises." To allay fears that the American troops are here to engage the ASG in combat, the TOR professes that the
present exercise "is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts
against the ASG, and will be conducted on the Island of Basilan." The TOR further provides that the "exercise" shall

32
involve the conduct of "mutual military assisting, advising and training of RP and US Forces with the primary objective
of enhancing the operational capabilities of both forces to combat terrorism."

These avowals of assistance, advice, and training, however, fly in the face of the presence of US troops in the heart of
the ASG's stronghold. Such presence is an act of provocation that makes an armed confrontation between US soldiers
and ASG members inevitable.

The US troops in Basilan have been described as being "on a slippery slope between training and fighting." Their very
presence makes them a target for terrorist and for the local Moslem populace, which has been bitterly anti-American
since colonial times. Though they are called advisers, the Americans win be going on risky missions deep into the
jungle. A former Green Beret who is an analyst of Washington's Center for Strategies and Budgetary Assessments
notes that "when troops go out on patrol, they come as close as they can to direct combat."4

"Advising" or "training" Filipino soldiers hardly describes the involvement of US troops (unaccompanied by Filipino
counterparts) on board combat helicopters which land on the battlegrounds to evacuate Filipino soldiers wounded while
fighting the ASG. For example, on April 5,2002, US troops on board a Pave Hawk helicopter flew to the scene of a
night battle on Basilan Island to evacuate a wounded Filipino soldier. This was reportedly the third time in recent
weeks that chopper-borne US forces had evacuated Filipino soldiers fighting the ASG.5

Whatever euphemisms may be conjured to characterize American involvement, the RP-US Balikatan 02-1 Exercises
are aimed at seeking out the ASG and exterminating it.

The prohibition contained in the TOR against US exercise participants from engaging in combat but "without prejudice
to their right to self- defense" provides little consolation. Combat muddles the distinction between aggression and self-
defense. US troops can always say they did not fire first and no one would dare say otherwise. The ASG has been so
demonized that no one cares how it is exorcised. Significantly, the TOR does not define the parameters of "self-
defense." Militarily, a pre-emptive strike could be interpreted as an act of self -defense.

What I fear most is that the country would be dragged into a more devastating and protracted conflict as a result of the
continued presence of US military troops in Basilan. A single ASG sniper's bullet felling an American soldier could be
used as an excuse for massive retaliation by US ground and air forces to attack and bomb out every suspected ASG lair,
all in the name of "self -defense.

Apprehensions over possible catastrophic consequence of US military involvement in our country are not without
historical basis.

The US experience in Vietnam, for example, began as an expression of support for the establishment of South Vietnam
under Bao Dai's leadership in 1949 to. counteract the support given by communist China and the Soviet Union to North
Vietnam. In 1950, the US began providing military assistance in fighting North Vietnam by sending military advisors
as well as US tanks, planes, artillery and other supplies. The US became more involved in the Vietnam conflict when in
1961, it sent the first 400 Green Beret "Special Advisors" to South Vietnam to train the latter's soldiers in methods of
counter-insurgency against the Viet Cong guerillas. It clarified that the American soldiers were not in Vietnam to
engage in combat.6

However, due to the increased success of the Viet Cong guerillas, assisted by the Northern Vietnamese Army, the US
eventually began to run covert operations using South Vietnamese commandos in speed boats to harass radar sites
along the coastline of North Vietnam. In 1964, after an alleged torpedo attack by North Vietnam of the American
destroyers USS. Maddox and USS. C. Turner Joy in the Gulf of Tonkin, the US decided to retaliate by conducting
bombing raids in North Vietnam.7

The Vietnam War resulted in the death of two million Vietnamese and injuries to three million others. Twelve million
Vietnamese became refugees and thousands of children became orphaned.8 Millions of acres of Vietnam's forests were
defoliated by a herbicide called Agent Orange, dropped from the air. Millions of mines and unexploded bombs and
artillery shells are still scattered in the countryside, posing constant danger to life and limb.

US militarv presence is
essentially indefinite
and open-ended.

Already, there are indications that the US intends to reestablish a more enduring presence in the country. Defense
Secretary Angelo Reyes was quoted to have declared on March 20, 2002 that 2,665 US soldiers will take part in the
RP-US Balikatan 02-2 starting next month in Central Luzon and that 10 more military exercises will be held this year.9

33
How many more war exercises are needed for "training and advising" Filipino soldiers? What conditions must be
satisfied for the United States to consider the "war against terrorism" in Mindanao terminated? The endless frequency
and successive repetition of the war exercises covering the two largest islands of the country amount, in a real sense, to
the permanent presence of foreign military troops here sans a treaty in blatant violation of the constitutional
proscription.

US President George w. Bush in his January 30, 2002 speech declared:

The men and women of our armed-forces have delivered a message to every enemy of the United States. You shall not
escape the justice of this nation. x x x.

Should any country be timid in the face of terror, if they do not act, America will.

President Arroyo, in a speech at the Regis Hotel in New York City on February 1, 2002, pledged her "full support" to
US President George W. Bush in the fight against international terrorism. She declared that "the Philippines will
continue to be a partner of the United States in the war to end terrorism" and that "(t)he anti-terrorism partnership will
continue after the whole world is secure against the terrorist."10

In his speech on the White House Laws on March 11, 2002, President Bush exhorted:

America encourages and expects governments everywhere to help remove the terrorist parasites that threaten their own
countries and the peace of the world. x x x. We are helping right now in the Philippines, where terrorist with links to Al
Qaeda are trying to seize the southern part of the country to establish a military regime.

They are oppressing local peoples, and have kidnapped both American and Filipino citizens."11

The Philippine Daily Inquirer in its March 17, 2002 issue carried the following report:

The United States wants to bring in more troops for the controversial Balikatan 02-1 training exercise aimed at wiping
out the Abu Sayyaf bandits in Basilan.

The US military last week began calling the war-games "Operation Enduring Freedom-Philippines," giving credence to
claims that the country has become, after Afghanistan, the second front of the US-led global war on terrorism.

Today's issue of April 1, 2002 reporting as its source New York News Service, quoted a senior Bush administration
official as saying:

We are looking at prolonged training. x x x. It takes more to build up capabilities than saying here are some night
vision goggles.

The declarations of the two Presidents on the war against terrorism and their avowal to secure the world against the
terrorists would ineluctably suggest a long-drawn conflict without a foreseeable end. Worse, it is not unlikely that this
war could expand and escalate to include as protagonists the Moro Islamic Liberation Front and the Moro National
Liberation Front and -not improbably -the National People's Army, all lumped-up as "terrorists" in a unilateral
characterization.

No less than US Deputy Defense Secretary Paul Wolfowitz declared that the proposed $48-billion increase to the US
defense budget for 2003 is intended to sustain the war on terrorism,12 including that fought in this country, thus: .

Deputy Defense Secretary Paul Wolfowitz on Wednesday said the Pentagon needs a big budget increase next year on
terrorism, which has expanded from Afghanistan to the Philippines and now appears to be moving to Georgia.13

The Court can take judicial notice of the foregoing pronouncements as they are of public knowledge,14 having been
widely circulated in all channels of the media. Neither have they been denied.

US military intervention
is not the solution to the
Mindanao problem.

Assuming that the ASG is a terrorist organization, U.S. military intervention is not the solution to achieve peace. The
annihilation of the rebel bandits would be a futile quest so long at the root causes of their criminality are not addressed.
A study15 by the United Nations Secretariat, however, acknowledges that international terrorism springs from "misery,

34
frustration, grievance and 'despair," elements which, many believe, are present in Basilan. Two veteran Philippine
journalists have described the province as Mindanao's "war laboratory," where lawlessness, government neglect,
religious strife, poverty, and power struggle are rampant.16

If indeed acts of terrorism are cries of desperation, if terrorism is but a symptom of the greater maladies of "misery,
frustration, grievance and despair," then it cannot be remedied alone by ASG's physical extermination, which appears
to be the object of President Bush and President Macapagal- Arroyo's joint campaign against global terrorism."
Admittedly, the State has the right to use force as a means of self-preservation. But perhaps we should all consider that
a military solution is but a first-aid measure, not the prescription to these diseases. It has been opined that:

The issue of terrorism in the Philippines should be dealt with not from the perspective of Manila-Washington ties but
from a serious study of how terrorism figures in the minds of leaders and armed men belonging to the large but deeply
factionalized guerrilla movements in the country. Terrorism can never be dissociated from guerrilla warfare and the
separatist movement in Mindanao. From these movements would arise religious extremists or millennarian groups.
With the right resources and the right agenda, these movements will continue to attract men-skilled, intelligent, and
experienced-who will come to grasp the practical realities of waging a war with the minimum of resources but
maximum public impact.

The government does not have to look for foreign connections-and be motivated by the desire to help foreign friends to
address a problem that has been and will be the making of its own home grown armies.17

The presence of US troops in Basilan, whether from the legal, philosophical-or even from the practical perspective
cannot be justified, On the contrary, it is counterproductive. It serves to fuel an already volatile situation. US troops are
likely less able, if not less willing, to distinguish between the innocent and the enemy. The inevitable "collateral
damage," the killing of women and children, Muslims and Christians, the destruction of homes, schools and hospitals
would fan the flames of fanaticism and transform mere rogues into martyrs.

The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field of battle as shown in
Bataan and Corregidor, in the four long years of guerilla warfare thereafter against the Japanese, and in the struggle for
independence against Spain and the United States at the turn of the last century. The local army and police have
successfully battled in the past against Communist and other insurgents which were more organized and numerous,
operating in larger parts of the country and fighting for their political beliefs. If our troops need training by us advisers
or have to conduct joint exercises with US troops to improve their fighting capability, these could be more effectively
achieved if done outside Basilan or away from the danger zones. Instead of bringing troops to the combat zones, the US
can do more by supplying our soldiers with modern and high tech weaponry.

Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners do not have legal standing
or that the issues raised by them are premature and not based on sufficient facts. The issues raised are of transcendental
importance.18 The Balikatan exercises pose direct injury to some of the petitioners (intervenors) who live in the
affected areas. The presence of us troops in the combat zones "assisting" and "advising" our troops in combat against
the ASG is a blatant violation of the Constitutional proscription against the stationing of foreign troops to fight a local
insurgency and puts the country in peril of becoming a veritable killing field. If the time is not ripe to challenge the
continuing affront against the Constitution and the safety of the people, when is the right time? When the countryside
has been devastated and numerous lives lost?

I therefore vote to give due course to the petition.

sgd. SANTIAGO M. KAPUNAN

Associate Justice

Footnotes

1 In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series, Hans Koechler,
Professor of Philosophy at the University of Innsbruck (Austria) and President of the International Progress
Organization, speaking on "The United Nations, The International Rule of Law and Terrorism, " noted;

In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic
slogans when it comes to the justification of the use of force against certain states and against groups operating
internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly determined by strategic interests.

35
The basic problem underlying all these military actions -or threats of the use of force as the most recent by the United
States against Iraq- consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups
such as liberation movements, or by individuals.

The dilemma can be summarized in the saying '"One country's terrorist is another country's freedom fighter." The
apparent contradiction or lack of consistency in the use of the term "'terrorism" may further be demonstrated by the
historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by
those who controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining creterion for terrorist acts -the differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the
basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the gap
between those who associate "'terrorism" with any violent act by non-state groups against civilians, state functionaries
or infrastructure or military installations, and those who believe in the concept of the legitimate use of force when
resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups within a state is
concerned

The dilemma facing the international community can best be illustrated by reference to the contradicting categorization
of organizations and movements such as Palestine Liberation Organization (PLO) -which is a terrorist group for Israel
and a liberation movement for Arabs and Muslims -the Kashmiri resistance groups -who are terrorists in the perception
of India, liberation fighters in that of Pakistan -the earlier Contras in Nicaragua -freedom fighters for the United States,
terrorists for the Socialist camp -or, most drastically, the Afhani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the West, nurtured by the United States, and a
terrorist gang for the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way -because of opposing political interests that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group
and its actions be explained? In our analysis, the basic r.eason for these striking inconsistencies lies in the divergent
interests of states. Depending on whether a state is in the position of an occupying power or in that of a rival, or
adversary, of an occupying power in a given territory, the defmition of terrorism will "fluctuate" accordingly. A state
may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak
of a "liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-versa.
1âwphi1.nêt

The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of
these i. conflicting interests of sovereign states that determine in each and every ! instance how a particular armed
movement (i.e. a non-state actor) is r labeled in regard to the terrorist-freedom fighter dichotomy. A "policy of double
standards" on this vital issue of international affairs has been the unavoidable consequence.

This "defmitional predicament" of an organization consisting of ~ sovereign states -and not of peoples, in spite of the
emphasis in the I! Preamble to the United Nations Charter! -has become even more serious ~ in the present global
power constellation: ~ superpower exercises the :1 decisive role in the Security Council, former great powers of the
Cold ill i War era as well as medium powers are increasingly being marginalized; and the problem has become even
more acute since the terrorist attacks of 11 September 2001 in the United States. "

Koechler adds, however, that this failure to distinguish between terrorist acts and acts of national liberation did not
prevent the international community from arriving at an implicit or 11, "operative" definition. For example, in Article
of the International Convention for Suppression of Terrorist Bombings, terrorist acts are referred to as "criminal acts ...,
in particular where they are intended or calculated to provoke a state of terror in the general i ~ public or in a group of
persons or particular persons" that are under no circumstances justifiable considerations of a political, philosophical,
ideological, racial, ethnic, religious or ti ~ other similar nature."

2 The following excerpts from "Under the Crescent Moon: Rebellion in Mindanao" by Marites Dafiguilan Vitug and
Glenda M. Gloria (Ateneo Center for Social Policy and Public Affairs and Institute for Popular Democracy, 2000)
demonstrate the obscurity of the ASG's raison d. etre:

36
...for all the warring [the Abu Sayyaf] it has done supposedly in the name of Islam, there is much confusion and
mistrust surrounding the Abu Sayyaf, whose leaders had flaunted their ties with the police and the military. Even
veterans of the Mindanao war find it hard to identify the Abu Sayyaf's political direction-where it really wants to go, or
what it wants to achieve as an organization. (At pp. 204205.)

The military had long been divided on how to view the Abu Sayyaf. The dominant view held the group as a genuine
extremist organization driven by an extreme view of Islam. But there are military strategists who have downplayed the
ideological component of Janjalani's cause, arguing that he merely wanted to steal the thunder from the MNLF and the
MILF - and in the process also hijack their financial connections to the Arab World. (At p. 206.)

….[Basilan Bishop Romeo] [de] la Cruz said he didn't think the Abu Sayyaf was truly espousing fundamentalism.
"Initially I thought this was a religious conflict because of the so-called resurgence of Islam. For awhile the Church
even attributed the spate of kidnappings in Basilan to Islamic fundamentalism. "Later on we realized this was not the
case. Islam was being used as a mere cover of these people.

Abdulgani "Gerry" Salappudin, governor of Basilan for 10 years, shares this view. The Abu Sayyaf was being used to
destroy the image of Islam. He cited the fact that Janjalani's mother was a Christian. Was he out, therefore, the destroy
Islam? "I am not saying that... It's just that he's not pure Muslim."

Thus, how and why exactly the Abu Sayyaf was founded is a question for which neither the military nor Janjalani had a
solid answer. The group remains as nebulous as its beginning, and as shadowy as its charismatic founder. There is
absolutely no doubt that it has been infiltrated by the military. What is uncertain is whether or not Janjalani, who was
admired by many in the Muslim community, formed the Abu Sayyafprecisely to work for the military or if he had
simply lost control over his own men. (At pp. 210-211.)

3 Article III (1) on Entry and Departure, for example, imposes upon the Philippine Government the duty to "facilitate
the admission of United States personnel and their departure from the Philippines in connection with activities covered
by this agreement." Article VI (1) also mentions "claims... from activities to which this agreement applies." The same
reference to "activities to which this agreement applies" is found in Article VII on Importation and Exportation. Article
I, in defining "United States personnel" as "United States military and civilian personnel temporarily in the Philippines
in connection with activities approved by the Philippine Government," does not limit the scope of the "activities" that
the Philippine Government may "approve."

4 McGeary, Next Stop Mindanao, Time Magazine, January 28, 2002, p. 22.

5Philippine Daily Inquirer, April 6, 2002.

6 See www.historyplace.com, Also Ambrose, Stephen, Rise to Globalism: American Foreign Policy since 1938 (Fifth
Rev, Ed.),

7 Id.

8 Microsoft Encyclopedia Encarta (2000).

9 Philippine Daily Inquirer, March 21,2002.

10 Manila Bulletin, February 2, 2002.

II Philippine Star, March 13,2002.

12 "Democratic Senate Majority Leader Tom Daschle criticized the US administration's war terrorism yesterday,
charging that it has undergone an expansion without at least a clear direction."

"How long can we stand this kind of pressure on our treasury?.. We seem to be good at developing enhance strategies,
not so good at developing exit strategies, he charged." (The Philippine Star, March 2, 2002).

13 The Philippine Star, March 2, 2002.

14 Sec. 1, Rule 129, RULES OF COURT.

15 Entitled "Measures to Prevent International Terrorism which Endangers or Takes Innocent Human Lives or
Jeopardizes Fundamental Freedoms and Study of the Underlying Causes of Those Forms of Terrorism and Acts of

37
Violence which Lie in Misery, Frustration, Grievance and Despair and which Cause Some People to Sacrifice Human
Lives, including Their Own, in an Attempt to Effect Radical Changes." 2 November 1972, 27th Session. The pertinent
portions of the study state:

13. Man is one of the few species that frequently uses violence against its own kind. He has done so since the dawn of
history. In the past, periods in which violence has been especially conspicuous have been those of rapid social change.
During the years of the existence of the United Nations, when in most parts of the world, and in both the

developed and the developing countries, the patters of society are changing with almost unprecedented speed, violence
has been frequent.

14. The interlinked growth of technology and growth of population have tended to create new hopes, expectations and
needs in many social groups. These new attitudes mark a departure from the resignation and passivity with which most
men in the past accepted the ills of life. The United Nations Charter is the voice of the aspirations of mankind when it
contemplates the establishment of a world in which aggression and the threat or use of force in international relations
would be effectively outlawed, friendly relations would exist among nations on the basis of respect for the principles of
equal rights and self- determination of peoples, international disputes would be settled justly be peaceful, and
international co-operation would solve international economic and social problems and promote respect for human
rights and fundamental freedoms for all.

15. The period of the existence of the United Nations, however, has shown very incomplete and uneven progress
towards these goals. While major wars involving the great Power have not occurred, force has often been resorted to,
and has inflicted suffering and exile upon peoples. While progress has been made against colonialism and racism, those
evils have not yet been completely eliminated. Even where political independence has been established, in many cases
much remains to be done in assisting the populations to attain the minimum level necessary for decent conditions of
life. Few advances have been made towards the peaceful settlement of some major international disputes, which are too
often left to fester and poison international relations. Among groups where economic and social progress has been
relatively slow, conditions have been unfavourable to the exercise of and the respect for human rights and fundamental
freedom.

16. The lack of slowness of advance towards these goals has contributed toward the "misery, frustration, grievance and
despair" which, while not themselves causes of terrorism, are psychological conditions or states of being which
sometimes lead, directly or indirectly, to the commission of acts of violence. While in the United Nations context it is
perhaps appropriate to give special attention to the international factor that contribute to violence, there are also many
situations in individual nations which may give rise to the grievance of a particular group or person, leading to acts
having international repercussions. Purely personal circumstances can also often have the same result. There are also
cases in which there is no genuine grievance at all, and a violent crime affecting more than one country seems to have
been committed from mere cupidity, or a desire to escape criminal prosecution. The General Assembly, however, in
stressing "misery, frustration, grievance and despair, seems to have singled out for special attention those situations
which have the common characteristic of calling for redress.

17. Why is it that violence resulting from these circumstances takes with increasing frequency the form of international
terrorism, threatening, endangering or killing innocent victims? As the peoples of the world grow more interdependent
the solution of many problems no longer hangs on any local ruler or government, but on actions and decisions taken
thousands of miles away. Men think their ills have been produced by some vast impersonal force, which is deaf to their
pleas for justice or impotent to find solutions, rather than by other men, striving for similar although opposed ends and
bound to them by the claims of a common humanity. Modem communications and the growth of the public information
media have transformed local incidents into world events, especially when the incidents have an international character.
A terrorist act focuses world attention upon the terrorist and upon any cause he may claim to represent. In these
circumstances, some such acts - which, as has already been said, cannot possibly by themselves effect radical social
changes -are really acts of communication. They are intended to show the world that the determination and devotion of
the terrorists are sufficient to compensate in the long run for their apparent inferiority in strength; that their cause is
more holy to them than life itself, must be taken seriously, and is worthy of support; and that neither their foe nor the
world at-Iarge is able to prevent their success in their purpose, or ensure punishment of their deeds and those of their
associates.

18. Other such acts, however, seem to be more the result of blind fanaticism, or of the adoption of an extremist
ideology which subordinates morality and all other human values to a single aim. In either case, the result is the same;
modern life and modern weapons bring more and more strangers and foreigners within the reach of the terrorist, and he
uses them as instruments for his purpose. As violence breeds violence, so terrorism begets counter-terrorism, which in
turn leads to more terrorism in an ever-increasing spiral,

38
xxx

20. It thus appears that the "misery, frustration, grievance and despair" which lead to terrorism have many roots in
international and national political, economic and social situations affecting the terrorist, as well as in his personal
circumstances. The precise chain of causation of particular acts cannot be traced with scientific exactitude.
Nevertheless, the General Assembly may wish to identify types of situations which, if a remedy could be found to bring
them more into accord with justice, will cease to contribute to the spreading terrorism which has shocked the world.

16 Dañguilan Vitug and Gloria (Under the Crescent Moon: Rebellion in Mindanao, supra.) write:

Indeed, a man is inspired by his belief but is constrained by his environment. And Basilan, where Janjalani grew up, is
a place where the laws set by men are flouted daily. It is a place where people of weak resolve could give in to the
challenges posed by power, either the lack or possession of it. It certainly is not a place conducive for reflection or
reinforcing pure religious thoughts.

Mindanao's best war laboratory, Basilan is one of the Country's poorest provinces where all sorts of armed groups
dominate a populace long neglected by government. Local rulers compete for legitimacy with armed rebel groups,
bandits, Muslim preachers, Catholic volunteers, loggers legal and illegal, the Marines, the Army. In this sense, the Abu
Sayyaf was ripe for growth. Modern history has proven that whenever the legitimacy of the state suffers and the
economy goes down, other forces come to fore as alternative. Janjalani had offered solace to those who bothered to
listen to him. The reality of Basilan, after all, is its deadly environment: grinding poverty, the absence of the rule of
law, and the proliferation of arms and of men who thrive on them. It is no coincidence that a group with such
amorphous beginnings as the Abu Sayyaf was established in a province that remains poor despite its fertile, lushly
forested land and its proximity to Zamboanga City. It didn't matter that Janjalani went to the Catholic-run Clarest
school. Janjalani, or any local leader for that matter, would have found it difficult to detach himself from this
environment.

Former MNLF members in Basilan who have known little more than how to was kidnapping, and it gave Abu Sayaff
away. No group espousing a true Islamic state would have resorted to kidnapping in such a random, blatant style as the
Abu Sayyaf did in its heyday.

It also didn't help that the governrnent and the media unfairly lumped Islamic fundamentalism and terrorism together
because the Abu Sayyaf, which espouses the former, has been suing the latter as a means to fight for its cause. (At 206-
207.)

17 DANGUILAN VITUG AND GLORIA, at 244-245.

18 Bayan vs. Zamora, 342 SCRA 449 (2002).

EN BANC

G.R. No. 151445 APRIL 11, 2002

ARTHUR D. LIM, ET AL., petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY, ETC., ET AL., respondents.
SANLAKAS, ET AL., intervenors.

SEPARATE OPINION*

PANGANIBAN, J:

Through their "Petition for Certiorari and, Prohibition," Arthur D. Lim and Paulino R. Ersanda -- joined by Intervenors
Sanlakas and Partido ng Manggagawa -- plead for the issuance of an order "restraining the respondents from
proceeding or continuing and completing the so-called 'Balikatan 02-1'" on the ground that the exercise is not
sanctioned by any treaty and is, therefore, allegedly unconstitutional.

Agreeing with the Comment of the Office of the Solicitor General (OSG), the ponencia of Mr. Justice Sabino R. de
Leon Jr. dismisses the Petition essentially on these procedural grounds:

39
1. As taxpayers, petitioners do not have legal standing or locus standi, because Balikatan 02-1 "does not involve the
exercise by Congress of its taxing or spending power."

2. Certiorari and prohibition are improper remedies, because petitioners have not alleged sufficient facts upon which
grave abuse of discretion or excess/lack of jurisdiction could be argued from.

3. The Petition is premature because the alleged violation of the Constitution is merely speculative, not actual or
imminent.

4. Though entitled "Certiorari and Prohibition," the Petition is really one for declaratory relief which merely seeks an
advice or opinion, not a decision. The Supreme Court has no jurisdiction to issue opinions or advices.

Ordinarily, the above reasons would indeed be sufficient to cause the dismissal of a petition. However, because of the
"transcendental importance" of the main question raised - the constitutionality of the Balikatan exercise - the Court, I
believe, could have exempted this case from these procedural requirements and tackled the case on the merits, if only to
put to rest the legality of this major event of public interest ill our country and even ill the world. I, for one, would have
voted to set aside these legalistic obstacles, had the Petition presented enough factual moorings upon which to base an
intelligent discussion and disposition of the legal issues.

For instance, this Court cannot be called upon to decide the factual issues of whether the US forces are actually
engaging the Abu Sayyaf Group ill combat and whether they will stay ill our country permanently. This Court has no
authority to conduct a trial, which can establish these factual antecedents. Knowing what these antecedents are is
necessary to determine whether the Balikatan violates the Constitution or the Mutual Defense Treaty (MDT) of 1951 or
the Visiting Forces Agreement (VFA) of 1999. Verily, the Petition has not even alleged that the American troops have
indeed been unconstitutionally engaged ill actual offensive combat. The contention that they would necessarily and
surely violate the Constitution by participating ill the joint exercise in Basilan is merely speculative. Petitioners aver:

"American soldiers with high-tech weaponry, disguised as trainers or advisers to Filipino troops, will go to the war
zones of Basilan. Hence, while dubbed as a military exercise, it is in reality a continuing combat operation by the AFP
against the Abu Sayyaf to be participated in this time by U.S. troops. It has been admitted that U.S. 'advisers' will
accompany Filipino soldiers on patrol in the combat zones.

Also, a base of operation will be in the Sampinit complex which is in the heartland of the Abu Sayyaf's 'territorial
domain' in Basilan island. A shooting war, not just an exercise, is unavoidable."

That a "shooting war is unavoidable" is conjectural; at best, a conclusion that is not borne by solid factual moorings.
Cases cannot be decided on mere speculation or prophecy .The Petition claims that while the us troops are "disguised"
as "advisers" or "trainors" or "chaperons," they are actually combatants engaged in an offensive war against local
insurgents. Again, there is no solid factual basis for this statement. It may or may not be true. The Petition also alleges,
again without firm factual support, that the American forces will stay here indefinitely "for a year or even more
depending on the need of the AFP for them."

On the other hand, the OSG assures that petitioners' "apprehensions are belied" by the Terms of Reference (TOR)
approved by both the Philippines and the United States, which "expressly limit. the conduct and completion of the
exercise within a period not exceeding six " (6) months and prohibits the American participants from engaging in
combat, without prejudice to their right to self-defense."

I stress that cases cannot be decided by this Court on the basis of speculative or hypothetical assumptions like "If the
facts were these, then our decision would be this; on the other hand, if the facts change, then our ruling would be
modified as follows. " Decisions of this Court especially in certiorari and prohibition cases are issued only if the facts
are clear and definite. As a rule, courts may not consider or judge facts or matters unless they are alleged in the
pleadings and proven by the parties. Our duty is to apply the law to facts that are not in dispute.

In the absence of firm factual findings that the Americans "will stay indefinitely" in our country or "are engaged in
actual offensive combat with local insurgents" as alleged by petitioners, respondent Philippine officials who are hosting
the Balikatan exercise cannot possibly be imputed with grave abuse of discretion - an indispensable element of
certiorari. 1âwphi1.nêt

True, there are some questions that may genuinely be raised in regard to the Balikatan 02-1 vis-a-vis our Constitution,
the MDT and the VFA, like the following:

40
(1) Is the Abu Sayyaf Group composed of "international terrorists" whose acts and practices violate the United Nations
Charter to such an extent as to pose a threat to international peace and security?

(2) Is there an "external armed attack" against the Philippines sufficient in force and magnitude as to justify an
invocation of the MDT?

(3) Are the size, the kind, and the location of the Balikatan deployment justified by the nature, the scope, the duration,
and the kind of "activities" allowed under the VFA?

(4) Is it true that the real American objective is the rescue of ASG hostages Martin and Gracia Burnham, who are both
American citizens? If so, is such rescue legally justified?

(5) Does the Balikatan pose a "political question " which the Supreme Court has no authority to rule upon, and which
may only be decided by our people directly or through their I elected representatives?

Unfortunately, the foregoing and other similar nagging questions cannot be judicially taken up and answered until a
petition, sufficient in form and substance, is properly presented to the appropriate court.

FOR THE FOREGOING REASONS, I vote to DISMISS the present Petition.

sgd. ARTEMIO V. PANGANIBAN

Associate Justice

Footnotes

*At petitioners' insistent request, the Court had to speed up the deliberation and disposition of this case, as the
Balikatan may soon be completed and the Petition rendered moot. Hence, I wrote this Opinion hurriedly without the
benefit of the usual citations of legal authorities.

41
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 161872 April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003.
Respondent Commission on Elections (COMELEC) refused to give due course to petitioner’s Certificate of Candidacy
in its Resolution No. 6558 dated January 17, 2004. The decision, however, was not unanimous since Commissioners
Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties or
movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioner’s Motion for
Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioner’s Motion for
Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the same under
the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five
(35) others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political
party or are not supported by a registered political party with a national constituency. Commissioner Sadain maintained
his vote for petitioner. By then, Commissioner Tancangco had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in
violation of his right to "equal access to opportunities for public service" under Section 26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a nationwide
campaign and/or are nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly
amended the constitutional provisions on the electoral process and limited the power of the sovereign people to choose
their leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the
presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he
is capable of waging a national campaign since he has numerous national organizations under his leadership, he also
has the capacity to wage an international campaign since he has practiced law in other countries, and he has a platform
of government. Petitioner likewise attacks the validity of the form for the Certificate of Candidacy prepared by the
COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the
qualifications of candidates since it does not ask for the candidate’s bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to opportunities for public
office" is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to
seek the presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law.
Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an
enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an
interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and
State Policies." The provisions under the Article are generally considered not self-executing,2 and there is no plausible
reason for according a different treatment to the "equal access" provision. Like the rest of the policies enumerated in
Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline
for legislative or executive action.3 The disregard of the provision does not give rise to any cause of action before the
courts.4

An inquiry into the intent of the framers5 produces the same determination that the provision is not self-executory. The
original wording of the present Section 26, Article II had read, "The State shall broaden opportunities to public office

42
and prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an
amendment that changed the word "broaden" to the phrase "ensure equal access," and the substitution of the word
"office" to "service." He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal access
to the opportunity. If you broaden, it would necessarily mean that the government would be mandated to create as
many offices as are possible to accommodate as many people as are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should not mandate the State to make the government the number
one employer and to limit offices only to what may be necessary and expedient yet offering equal opportunities to
access to it, I change the word "broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as
many people as possible into public office. The approval of the "Davide amendment" indicates the design of the
framers to cast the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of
a clear State burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is
difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not
properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely
open-ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are susceptible to
countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to
inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some
valid limitations specifically on the privilege to seek elective office are found in the provisions9 of the Omnibus
Election Code on "Nuisance Candidates" and COMELEC Resolution No. 645210 dated December 10, 2002 outlining
the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel a Certificate of
Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not
violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any
one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt
from the limitations or the burdens which they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code
and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be
accorded due weight.

Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the Constitution is
misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not
evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its
electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities
for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election.
These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise.
At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and
proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in
our democratic institutions. As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support
before printing the name of a political organization and its candidates on the ballot – the interest, if no other, in
avoiding confusion, deception and even frustration of the democratic [process].11

The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17
January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the
COMELEC’s Comment:

There is a need to limit the number of candidates especially in the case of candidates for national positions because the
election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run.
Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official

43
Ballots. These would entail additional costs to the government. For the official ballots in automated counting and
canvassing of votes, an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS
(P450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign enough
to project the prospect of winning, no matter how slim.12

The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the
elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every
polling place,13 watchers in the board of canvassers,14 or even the receipt of electoral contributions.15 Moreover,
there are election rules and regulations the formulations of which are dependent on the number of candidates in a given
election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The
organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with
no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to
mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be
bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these
nuisance candidates. It would be a senseless sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates
and need not indulge in, as the song goes, "their trips to the moon on gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to
ensure orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and
detract from the larger purpose. The COMELEC is mandated by the Constitution with the administration of elections16
and endowed with considerable latitude in adopting means and methods that will ensure the promotion of free, orderly
and honest elections.17 Moreover, the Constitution guarantees that only bona fide candidates for public office shall be
free from any form of harassment and discrimination.18 The determination of bona fide candidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner
cannot be tested and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the
COMELEC do not direct the Court to the evidence which it considered in determining that petitioner was a nuisance
candidate. This precludes the Court from reviewing at this instance whether the COMELEC committed grave abuse of
discretion in disqualifying petitioner, since such a review would necessarily take into account the matters which the
COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an
eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the
reproductions as evidence at this level. Neither the COMELEC nor the Solicitor General appended any document to
their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual
determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the government. It deserves
not a cursory treatment but a hearing which conforms to the requirements of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form
strictly complies with Section 74 of the Omnibus Election Code. This provision specifically enumerates what a
certificate of candidacy should contain, with the required information tending to show that the candidate possesses the
minimum qualifications for the position aspired for as established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC
for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a
nuisance candidate as contemplated in Section 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its findings to this Court with
deliberate dispatch.

44
SO ORDERED.

Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Footnotes

* On Official Leave.

1 Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law.

2 See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68; Kilosbayan, Inc. v. Morato, G.R. No.
118910, 246 SCRA 540, 564. "A provision which lays down a general principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing." Manila Prince Hotel v. GSIS, G.R. No. 122156, 3 February 1997, 267
SCRA 408, 431. "Accordingly, [the Court has] held that the provisions in Article II of our Constitution entitled
"Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the
State." Justice Puno, dissenting, Manila Prince Hotel v. GSIS, Id. at 474.

3 See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November 1995, 250 SCRA 130, 138. Manila Prince Hotel v.
GSIS, supra note 2 at 436.

4 Kilosbayan, Inc. v. Morato, supra note 2.

5 "A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself
as a definitive law, or if it needs future legislation for completion and enforcement. The inquiry demands a micro-
analysis and the context of the provision in question." J. Puno, dissenting, Manila Prince Hotel v. GSIS, supra note 2.

6 J. Bernas, The Intent of the 1986 Constitution Writers (1995), p. 148.

7 IV Records of Proceedings and Debates, 1986 Constitutional Commission 945.

8 See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792, 815.

9 Section 69. Nuisance Candidates. — The Commission may, motu proprio or upon a verified petition of an interested
party, refuse to give due course or cancel a certificate of candidacy if it is shown that said certificate has been filed to
put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names
of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona
fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful
determination of the true will of the electorate.

10 SEC. 6. Motu Proprio Cases. — The Commission may, at any time before the election, motu proprio refuse to give
due course to or cancel a certificate of candidacy of any candidate for the positions of President, Vice-President,
Senator and Party-list:

I. The grounds:

a. Candidates who, on the face of their certificate of candidacy, do not possess the constitutional and legal
qualifications of the office to which they aspire to be elected;

b. Candidate who, on the face of said certificate, filed their certificate of candidacy to put the election process in
mockery or disrepute;

c. Candidates whose certificate of candidacy could cause confusion among the voters by the similarity of names and
surnames with other candidates; and

d. Candidates who have no bona fide intention to run for the office for which the certificate of candidacy had been filed
or acts that clearly demonstrate the lack of such bona fide intention, such as:

d.1 Candidates who do not belong to or are not nominated by any registered political party of national constituency;

45
d.2 Presidential, Vice-Presidential [candi-dates] who do not present running mates for vice-president, respectively, nor
senatorial candidates;

d.3 Candidates who do not have a platform of government and are not capable of waging a nationwide campaign.

11 Jenness v. Fortson, 403 U.S. 431 (1971).

12 Rollo, pp. 469.

13 See Section 178, Omnibus Election Code, as amended.

14 See Section 239, Omnibus Election Code, as amended.

15 See Article XI, Omnibus Election Code, as amended.

16 See Section 2(1), Article IX, Constitution.

17 Sanchez v. COMELEC, 199 Phil. 617 (1987), citing Cauton v. COMELEC, L-25467, 27 April 1967, 19 SCRA 911.

18 See Section 9, Article IX, Constitution.

46
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 134625 August 31, 1999

UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS, CHANCELLOR ROGER POSADAS, DR.

EMERLINDA ROMAN, DEAN CONSUELO PAZ, DR. ISAGANI MEDINA, DR. MARIA SERENA DIOKNO, DR.
OLIVIA CAOILI, DR. FRANCISCO NEMENZO II, DEAN PACIFICO AGABIN, CARMELITA GUNO, and
MARICHU LAMBINO, petitioners,
vs.
HON. COURT OF APPEALS and AROKIASWAMY WILLIAM MARGARET CELINE, respondents.

MENDOZA, J.:

For review before the Court is the decision of the Court of Appeals1 in CA-G.R. SP No. 42788, dated December 16,
1997, which granted private respondent's application for a writ of mandatory injunction, and its resolution, dated July
13, 1998, denying petitioners' motion for reconsideration.

The antecedent facts are as follows:

Private respondent Arokiaswamy William Margaret Celine is a citizen of India and holder of a Philippine visitor's visa.
Sometime in April 1988, she enrolled in the doctoral program in Anthropology of the University of the Philippines
College of Social Sciences and Philosophy (CSSP) in Diliman, Quezon City.

After completing the units of course work required in her doctoral program, private respondent went on a two-year
leave of absence to work as Tamil Programme Producer of the Vatican Radio in the Vatican and as General Office
Assistant at the International Right to Life Federation in Rome. She returned to the Philippines in July 1991 to work on
her dissertation entitled, "Tamil Influences in Malaysia, Indonesia and the Philippines."

On December 22, 1992, Dr. Realidad S. Rolda, chairperson of the U.P. Department of Anthropology, wrote a letter to
Dr. Maria Serena Diokno, CSSP Associate Dean and Graduate Program Director, certifying that private respondent had
finished her dissertation and was ready for her oral defense. Dr. Rolda suggested that the oral defense be held on
January 6, 1993 but, in a letter, dated February 2, 1993, Dr. Serena Diokno rescheduled it on February 5, 1993. Named
as members of the dissertation panel were Drs. E. Arsenio Manuel, Serafin Quiason, Sri Skandarajah, Noel Teodoro,
and Isagani Medina, the last included as the dean's representative.1âwphi1.nêt

After going over private respondent's dissertation, Dr. Medina informed CSSP Dean Consuelo Joaquin-Paz that there
was a portion in private respondent's dissertation that was lifted, without proper acknowledgment, from Balfour's
Cyclopaedia of India and Eastern and Southern Asia (1967), volume I, pp. 392-401 (3 v., Edward Balfour 1885 reprint)
and from John Edye's article entitled "Description of the Various Classes of Vessels Constructed and Employed by the
Natives of the Coasts of Coromandel, Malabar, and the Island of Ceylon for their Coasting Navigation" in the Royal
Asiatic Society of Great Britain and Ireland Journal, volume I, pp. 1-14 (1833).2

Nonetheless, private respondent was allowed to defend her dissertation on February 5, 1993. Four (4) out of the five (5)
panelists gave private respondent a passing mark for her oral defense by affixing their signatures on the approval form.
These were Drs. Manuel, Quiason, Skandarajah, and Teodoro. Dr. Quiason added the following qualification to his
signature:

Ms. Arokiaswamy must incorporate the suggestions I made during the successful defense of her P.D. thesis.3

Dr. Medina did not sign the approval form but added the following comment:

Pipirmahan ko ang pagsang-ayon/di pagsang-ayon kapag nakita ko na ang mga revisions ng dissertation.4

Dr. Teodoro added the following note to his signature:

Kailangang isagawa ang mga mahahalagang pagbabago at ipakita sa panel and bound copies.5

47
In a letter, dated March 5, 1993 and addressed to her thesis adviser, Dr. Manuel, private respondent requested a meeting
with the panel members, especially Dr. Medina, to discuss the amendments suggested by the panel members during the
oral defense. The meeting was held at the dean's office with Dean Paz, private respondent, and a majority of the
defense panel present.6 During the meeting, Dean Paz remarked that a majority vote of the panel members was
sufficient for a student to pass, notwithstanding the failure to obtain the consent of the Dean's representative.

On March 24, 1993, the CSSP College Faculty Assembly approved private respondent's graduation pending submission
of final copies of her dissertation.

In April 1993, private respondent submitted copies of her supposedly revised dissertation to Drs. Manuel, Skandarajah,
and Quiason, who expressed their assent to the dissertation. Petitioners maintain, however, that private respondent did
not incorporate the revisions suggested by the panel members in the final copies of her dissertation.

Private respondent left a copy of her dissertation in Dr. Teodoro's office April 15, 1993 and proceeded to submit her
dissertation to the CSSP without the approvals of Dr. Medina and Dr. Teodoro, relying on Dean Paz's March 5, 1993
statement.

Dr. Teodoro later indicated his disapproval, while Dr. Medina did not sign the approval form.7

Dean Paz then accepted private respondent's dissertation in partial fulfillment of the course requirements for the
doctorate degree in Anthropology.

In a letter to Dean Paz, dated April 17, 1993, private respondent expressed concern over matters related to her
dissertation. She sought to explain why the signature of Dr. Medina was not affixed to the revision approval form.
Private respondent said that since she already had the approval of a majority of the panel members, she no longer
showed her dissertation to Dr. Medina nor tried to obtain the latter's signature on the revision approval form. She
likewise expressed her disappointment over the CSSP administration and charged Drs. Diokno and Medina with
maliciously working for the disapproval of her dissertation, and further warned Dean Paz against encouraging
perfidious acts against her.

On April 17, 1993, the University Council met to approve the list of candidates for graduation for the second semester
of school year 1992-1993. The list, which was endorsed to the Board of Regents for final approval, included private
respondent's name.

On April 21, 1993, Dean Paz sent a letter to Dr. Milagros Ibe, Vice Chancellor for Academic Affairs, requesting the
exclusion of private respondent's name from the list of candidates for graduation, pending clarification of the problems
regarding her dissertation. Her letter reads:8

Abril 21, 1993

Dr. Milagros Ibe

Vice Chancellor for Academic Affairs
Unibersidad ng Pilipinas
Quezon Hall, Diliman, Q.C.

Mahal na Dr. Ibe,

Mahigpit ko pong hinihiling na huwag munang isama ang pangalan ni Ms. Arokiaswam[y] William Margaret Celine sa
listahan ng mga bibigyan ng degri na Ph.D. (Anthropology) ngayon[g] semester, dahil sa mga malubhang bintang nya
sa ilang myembro ng panel para sa oral defense ng disertasyon nya at sa mga akusasyon ng ilan sa mga ito sa kanya.

Naniniwala po kami na dapat mailinaw muna ang ilang bagay bago makonfer ang degri kay Ms. Arokiaswam[y].
Kelangan po ito para mapangalagaan ang istandard ng pinakamataas na degree ng Unibersidad.

(Sgd.)

CONSUELO JOAQUIN-PAZ, Ph.D.

Dekano

Apparently, however, Dean Paz's letter did not reach the Board of Regents on time, because the next day, April 22,
1993, the Board approved the University Council's recommendation for the graduation of qualified students, including

48
private respondent. Two days later, April 24, 1993, private respondent graduated with the degree of Doctor of
Philosophy in Anthropology.

On the other hand, Dean Paz also wrote a letter to private respondent, dated April 21, 1993, that she would not be
granted an academic clearance unless she substantiated the accusations contained in her letter dated April 17, 1993.

In her letter, dated April 27, 1993, private respondent claimed that Dr. Medina's unfavorable attitude towards her
dissertation was a reaction to her failure to include him and Dr. Francisco in the list of panel members; that she made
the revisions proposed by Drs. Medina and Teodoro in the revised draft of her dissertation; and that Dr. Diokno was
guilty of harassment.

In a letter addressed to Dean Paz, dated May 1, 1993, Dr. Medina formally charged private respondent with plagiarism
and recommended that the doctorate granted to her be withdrawn.9

On May 13, 1993, Dean Paz formed an ad hoc committee, composed of faculty members from various disciplines and
chaired by Eva Duka-Ventura, to investigate the plagiarism charge against private respondent. Meanwhile, she
recommended to U.P. Diliman Chancellor, Dr. Emerlinda Roman, that the Ph.D. degree conferred on private
respondent be withdrawn.10

In a letter, dated June 7, 1993, Dean Paz informed private respondent of the charges against her.11

On June 15, 1993, the Ventura Committee submitted a report to Dean Paz, finding at least ninety (90) instances or
portions in private respondent's thesis which were lifted from sources without proper or due acknowledgment.

On July 28, 1993, the CSSP College Assembly unanimously approved the recommendation to withdraw private
respondent's doctorate degree and forwarded its recommendation to the University Council. The University Council, in
turn, approved and endorsed the same recommendation to the Board of Regents on August 16, 1993.

On September 6, 1993, the Board of Regents deferred action on the recommendation to study the legal implications of
its approval.12

Meanwhile, in a letter, dated September 23, 1993, U.P. Diliman Chancellor Emerlinda Roman summoned private
respondent to a meeting on the same day and asked her to submit her written explanation to the charges against her.

During the meeting, Chancellor Roman informed private respondent of the charges and provided her a copy of the
findings of the investigating committee.13 Private respondent, on the other hand, submitted her written explanation in a
letter dated September 25, 1993.

Another meeting was held on October 8, 1993 between Chancellor Roman and private respondent to discuss her answer
to the charges. A third meeting was scheduled on October 27, 1993 but private respondent did not attend it, alleging
that the Board of Regents had already decided her case before she could be fully heard.

On October 11, 1993, private respondent wrote to Dr. Emil Q. Javier, U.P. President, alleging that some members of
the U.P. administration were playing politics in her case.14 She sent another letter, dated December 14, 1993, to Dr.
Armand Fabella, Chairman of the Board of Regents, complaining that she had not been afforded due process and
claiming that U.P. could no longer withdraw her degree since her dissertation had already been accepted by the
CSSP.15

Meanwhile, the U.P. Office of Legal Services justified the position of the University Council in its report to the Board
of Regents. The Board of Regents, in its February 1, 1994 and March 24, 1994 meetings, further deferred action
thereon.

On July 11, 1994, private respondent sent a letter to the Board of Regents requesting a re-investigation of her case. She
stressed that under the Rules and Regulations on Student Conduct and Discipline, it was the student disciplinary
tribunal which had jurisdiction to decide cases of dishonesty and that the withdrawal of a degree already conferred was
not one of the authorized penalties which the student disciplinary tribunal could impose.

On July 28, 1994, the Board of Regents decided to release private respondent's transcript of grades without annotation
although it showed that private respondent passed her dissertation with 12 units of credit.

On August 17, 1994, Chancellor Roger Posadas issued Administrative Order No. 94-94 constituting a special
committee composed of senior faculty members from the U.P. units outside Diliman to review the University Council's

49
recommendation to withdraw private respondent's degree. With the approval of the Board of Regents and the U.P.
Diliman Executive Committee, Posadas created a five-man committee, chaired by Dr. Paulino B. Zafaralla, with
members selected from a list of nominees screened by Dr. Emerenciana Arcellana, then a member of the Board of
Regents. On August 13, 1994, the members of the Zafaralla committee and private respondent met at U.P. Los Baños.

Meanwhile, on August 23, 1994, the U.P. Diliman Registrar released to private respondent a copy of her transcript of
grades and certificate of graduation.

In a letter to Chancellor Posadas, dated September 1, 1994, private respondent requested that the Zafaralla committee
be provided with copies of the U.P. Charter (Act No. 1870), the U.P. Rules and Regulations on Student Conduct and
Discipline, her letter-response to Chancellor Roman, dated September 25, 1993, as well as all her other
communications.

On September 19, 1994, Chancellor Posadas obtained the Zafaralla Committee's report, signed by its chairman,
recommending the withdrawal of private respondent's doctorate degree. The report stated:16

After going through all the pertinent documents of the case and interviewing Ms. Arokiaswamy William, the following
facts were established:

1. There is overwhelming evidence of massive lifting from a published source word for word and, at times, paragraph
by paragraph without any acknowledgment of the source, even by a mere quotation mark. At least 22 counts of such
documented liftings were identified by the Committee. These form part of the approximately ninety (90) instances
found by the Committee created by the Dean of the College and subsequently verified as correct by the Special
Committee. These instances involved the following forms of intellectual dishonesty: direct lifting/copying without
acknowledgment, full/partial lifting with improper documentation and substitution of terms or words (e.g., Tamil in
place of Sanskrit, Tamilization in place of Indianization) from an acknowledged source in support of her thesis
(attached herewith is a copy of the documents for reference); and

2. Ms. Arokiaswamy William herself admits of being guilty of the allegation of plagiarism. Fact is, she informed the
Special Committee that she had been admitting having lifted several portions in her dissertation from various sources
since the beginning.

In view of the overwhelming proof of massive lifting and also on the admission of Ms. Arokiaswamy William that she
indeed plagiarized, the Committee strongly supports the recommendation of the U.P. Diliman Council to withdraw the
doctoral degree of Ms. Margaret Celine Arokiaswamy William.

On the basis of the report, the University Council, on September 24, 1994, recommended to the Board of Regents that
private respondent be barred in the future from admission to the University either as a student or as an employee.

On January 4, 1995, the secretary of the Board of Regents sent private respondent the following letter:17

4 January 1995

Ms. Margaret Celine Arokiaswamy William

Department of Anthropology
College of Social Sciences and Philosophy
U.P. Diliman, Quezon City

Dear Ms. Arokiaswamy William:

This is to officially inform you about the action taken by the Board of Regents at its 1081st and 1082nd meetings held
last 17 November and 16 December 1994 regarding your case, the excerpts from the minutes of which are attached
herewith.

Please be informed that the members present at the 1081st BOR meeting on 17 November 1994 resolved, by a majority
decision, to withdraw your Ph.D. degree as recommended by the U.P. Diliman University Council and as concurred
with by the External Review Panel composed of senior faculty from U.P. Los Baños and U.P. Manila. These faculty
members were chosen by lot from names submitted by the University Councils of U.P. Los Baños and U.P. Manila.

50
In reply to your 14 December 1994 letter requesting that you be given a good lawyer by the Board, the Board, at its
1082nd meeting on 16 December 1994, suggested that you direct your request to the Office of Legal Aid, College of
Law, U.P. Diliman.

Sincerely yours,

(Sgd.)
VIVENCIO R. JOSE
Secretary of the University
and of the Board of Regents

On January 18, 1995, private respondent wrote a letter to Commissioner Sedfrey Ordoñez, Chairman of the
Commission on Human Rights, asking the commission's intervention.18 In a letter, dated February 14, 1995, to
Secretary Ricardo Gloria, Chairman of the Board of Regents, she asked for a reinvestigation of her case. She also
sought an audience with the Board of Regents and/or the U.P. President, which request was denied by President Javier,
in a letter dated June 2, 1995.

On August 10, 1995, private respondent then filed a petition for mandamus with a prayer for a writ of preliminary
mandatory injunction and damages, which was docketed as Civil Case No. Q-95-24690 and assigned to Branch 81 of
the Regional Trial Court of Quezon City.19 She alleged that petitioners had unlawfully withdrawn her degree without
justification and without affording her procedural due process. She prayed that petitioners be ordered to restore her
degree and to pay her P500,000.00 as moral and exemplary damages and P1,500,000.00 as compensation for lost of
earnings.

On August 6, 1996, the trial court, Branch 227, rendered a decision dismissing the petition for mandamus for lack of
merit.20 Private respondent appealed to the Court of Appeals, which on December 16, 1997, reversed the lower court.
The dispositive portion of the appellate court's decision reads:21

WHEREFORE, the decision of the court a quo is hereby reversed and set aside. Respondents are ordered to restore to
petitioner her degree of Ph.D. in Anthropology.

No pronouncement as to costs.

SO ORDERED.

Hence, this petition. Petitioners contend:

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING THE WRIT OF MANDAMUS
AND ORDERING PETITIONERS TO RESTORE RESPONDENT'S DOCTORAL DEGREE.

II

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE DOCTORAL
DEGREE GIVEN RESPONDENT BY U.P. CANNOT BE RECALLED WITHOUT VIOLATING HER RIGHT TO
ENJOYMENT OF INTELLECTUAL PROPERTY AND TO JUSTICE AND EQUITY.

III

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN DEPRIVING PETITIONERS OF THEIR

RIGHT TO SUBSTANTIVE DUE PROCESS.22

Petitioners argue that private respondent failed to show that she had been unlawfully excluded from the use and
enjoyment of a right or office to which she is entitled so as to justify the issuance of the writ of mandamus. They also
contend that she failed to prove that the restoration of her degree is a ministerial duty of U.P. or that the withdrawal of
the degree violated her right to the enjoyment of intellectual property.

On the other hand, private respondent, unassisted by counsel, argue that petitioners acted arbitrarily and with grave
abuse of discretion in withdrawing her degree even prior to verifying the truth of the plagiarism charge against her; and
that as her answer to the charges had not been forwarded to the members of the investigating committees, she was
deprived of the opportunity to comment or refute their findings.

51
In addition, private respondent maintains that petitioners are estopped from, withdrawing her doctorate degree; that
petitioners acted contrary to §9 of the U.P. Charter and the U.P. Rules and Regulations of Student Conduct and
Discipline of the University, which according to her, does not authorize the withdrawal of a degree as a penalty for
erring students; and that only the college committee or the student disciplinary tribunal may decide disciplinary cases,
whose report must be signed by a majority of its members.

We find petitioners' contention to be meritorious.

Mandamus is a writ commanding a tribunal, corporation, board or person to do the act required to be done when it or he
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is
entitled, there being no other plain, speedy, and adequate remedy in the ordinary course of law.23 In University of the
Philippines Board of Regents v. Ligot-Telan,24 this Court ruled that the writ was not available to restrain U.P. from the
exercise of its academic freedom. In that case, a student who was found guilty of dishonesty and ordered suspended for
one year by the Board of Regents, filed a petition for mandamus and obtained from the lower court a temporary
restraining order stopping U.P. from carrying out the order of suspension. In setting aside the TRO and ordering the
lower court to dismiss the student's petition, this Court said:

[T]he lower court gravely abused its discretion in issuing the writ of preliminary injunction of May 29, 1993. The
issuance of the said writ was based on the lower court's finding that the implementation of the disciplinary sanction of
suspension on Nadal "would work injustice to the petitioner as it would delay him in finishing his course, and
consequently, in getting a decent and good paying job." Sadly, such a ruling considers only the situation of Nadal
without taking into account the circumstances, clearly of his own making, which led him into such a predicament. More
importantly, it has completely disregarded the overriding issue of academic freedom which provides more than ample
justification for the imposition of a disciplinary sanction upon an erring student of an institution of higher learning.

From the foregoing arguments, it is clear that the lower court should have restrained itself from assuming jurisdiction
over the petition filed by Nadal. Mandamus is never issued in doubtful cases, a showing of a clear and certain right on
the part of the petitioner being required. It is of no avail against an official or government agency whose duty requires
the exercise of discretion or judgment.25

In this case, the trial court dismissed private respondent's petition precisely on grounds of academic freedom but the
Court of Appeals reversed holding that private respondent was denied due process. It said:

It is worthy to note that during the proceedings taken by the College Assembly culminating in its recommendation to
the University Council for the withdrawal of petitioner's Ph.D. degree, petitioner was not given the chance to be heard
until after the withdrawal of the degree was consummated. Petitioner's subsequent letters to the U.P. President proved
unavailing.26

As the foregoing narration of facts in this case shows, however, various committees had been formed to investigate the
charge that private respondent had committed plagiarism and, in all the investigations held, she was heard in her
defense. Indeed, if any criticism may be made of the university proceedings before private respondent was finally
stripped of her degree, it is that there were too many committee and individual investigations conducted, although all
resulted in a finding that private respondent committed dishonesty in submitting her doctoral dissertation on the basis
of which she was conferred the Ph.D. degree.

Indeed, in administrative proceedings, the essence of due process is simply the opportunity to explain one's side of a
controversy or a chance seek reconsideration of the action or ruling complained of.27 A party who has availed of the
opportunity to present his position cannot tenably claim to have been denied due process.28

In this case, private respondent was informed in writing of the charges against her29 and afforded opportunities to
refute them. She was asked to submit her written explanation, which she forwarded on September 25, 1993.30 Private
respondent then met with the U.P. chancellor and the members of the Zafaralla committee to discuss her case. In
addition, she sent several letters to the U.P. authorities explaining her position.31

It is not tenable for private respondent to argue that she was entitled to have an audience before the Board of Regents.
Due process in an administrative context does not require trial-type proceedings similar to those in the courts of
justice.32 It is noteworthy that the U.P. Rules do not require the attendance of persons whose cases are included as
items on the agenda of the Board of Regents.33

52
Nor indeed was private respondent entitled to be furnished a copy of the report of the Zafaralla committee as part of her
right to due process. In Ateneo de Manila University v. Capulong,34 we held:

Respondent students may not use the argument that since they were not accorded the opportunity to see and examine
the written statements which became the basis of petitioners' February 14, 1991 order, they were denied procedural due
process. Granting that they were denied such opportunity, the same may not be said to detract from the observance of
due process, for disciplinary cases involving students need not necessarily include the right to cross examination. An
administrative proceeding conducted to investigate students' participation in a hazing activity need not be clothed with
the attributes of a judicial proceeding. . .

In this case, in granting the writ of mandamus, the Court of Appeals held:

First. Petitioner graduated from the U.P. with a doctorate degree in Anthropology. After graduation, the contact
between U.P. and petitioner ceased. Petitioner is no longer within the ambit of the disciplinary powers of the U.P. As a
graduate, she is entitled to the right and enjoyment of the degree she has earned. To recall the degree, after conferment,
is not only arbitrary, unreasonable, and an act of abuse, but a flagrant violation of petitioner's right of enjoyment to
intellectual property.

Second. Respondents aver that petitioner's graduation was a mistake.

Unfortunately this "mistake" was arrived at after almost a year after graduation. Considering that the members of the
thesis panel, the College Faculty Assembly, and the U.P. Council are all men and women of the highest intellectual
acumen and integrity, as respondents themselves aver, suspicion is aroused that the alleged "mistake" might not be the
cause of withdrawal but some other hidden agenda which respondents do not wish to reveal.

At any rate, We cannot countenance the plight the petitioner finds herself enmeshed in as a consequence of the acts
complained of. Justice and equity demand that this be rectified by restoring the degree conferred to her after her
compliance with the academic and other related requirements.

Art. XIV, §5 (2) of the Constitution provides that "[a]cademic freedom shall be enjoyed in all institutions of higher
learning." This is nothing new. The 1935 Constitution35 and the 1973 Constitution36 likewise provided for the
academic freedom or, more precisely, for the institutional autonomy of universities and institutions of higher learning.
As pointed out by this Court in Garcia vs. Faculty Admission Committee, Loyola School of Theology,37 it is a freedom
granted to "institutions of higher learning" which is thus given "a wide sphere of authority certainly extending to the
choice of the students." If such institution of higher learning can decide who can and who cannot study in it, it certainly
can also determine on whom it can confer the honor and distinction of being its graduates.

Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the right
to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not terminate
upon the "graduation" of a student, as the Court of Appeals held. For it is precisely the "graduation" of such a student
that is in question. It is noteworthy that the investigation of private respondent's case began before her graduation. If
she was able to join the graduation ceremonies on April 24, 1993, it was because of too many investigations conducted
before the Board of Regents finally decided she should not have been allowed to graduate.

Wide indeed is the sphere of autonomy granted to institutions of higher learning, for the constitutional grant of
academic freedom, to quote again from Garcia v. Faculty Admission Committee, Loyola School of Theology, "is not to
be construed in a niggardly manner or in a grudging fashion."

Under the U.P. Charter, the Board of Regents is the highest governing body of the University of the Philippines.38 It
has the power confer degrees upon the recommendation of the University Council.39 If follows that if the conferment
of a degree is founded on error or fraud, the Board of Regents is also empowered, subject to the observance of due
process, to withdraw what it has granted without violating a student's rights. An institution of higher learning cannot be
powerless if it discovers that an academic degree it has conferred is not rightfully deserved. Nothing can be more
objectionable than bestowing a university's highest academic degree upon an individual who has obtained the same
through fraud or deceit. The pursuit of academic excellence is the university's concern. It should be empowered, as an
act of self-defense, to take measures to protect itself from serious threats to its integrity.

While it is true that the students are entitled to the right to pursue their educaiton, the USC as an educational institution
is also entitled to pursue its academic freedom and in the process has the concomitant right to see to it that this freedom
is not jeopardized.40

53
In the case at bar, the Board of Regents determined, after due investigation conducted by a committee composed of
faculty members from different U.P. units, that private respondent committed no less than ninety (90) instances of
intellectual dishonesty in her dissertation. The Board of Regents' decision to withdraw private respondent's doctorate
was based on documents on record including her admission that she committed the offense.41

On the other hand, private respondent was afforded the opportunity to be heard and explain her side but failed to refute
the charges of plagiarism against her. Her only claim is that her responses to the charges against her were not
considered by the Board of Regents before it rendered its decision. However, this claim was not proven. Accordingly,
we must presume regularity in the performance of official duties in the absence of proof to the contrary.42

Very much the opposite of the position of the Court of Appeals that, since private respondent was no longer a student
of the U.P., the latter was no longer within the "ambit of disciplinary powers of the U.P.," is private respondent's
contention that it is the Student Disciplinary Tribunal which had jurisdiction over her case because the charge is
dishonesty. Private respondent invoke §5 of the U.P. Rules and Regulations on Student Conduct and Discipline which
provides:

Jurisdiction. — All cases involving discipline of students under these rules shall be subject to the jurisdiction of the
student disciplinary tribunal, except the following cases which shall fall under the jurisdiction of the appropriate
college or unit;

(a) Violation of college or unit rules and regulations by students of the college, or

(b) Misconduct committed by students of the college or unit within its classrooms or premises or in the course of an
official activity;

Provided, that regional units of the University shall have original jurisdiction over all cases involving students of such
units.

Private respondent argues that under §25 (a) of the said Rules and Regulations, dishonesty in relation to one's studies
(i.e., plagiarism) may be punished only with suspension for at least one (1) year.

As the above-quoted provision of §5 of the Rules and Regulations indicates, the jurisdiction of the student disciplinary
tribunal extend only to disciplinary actions. In this case, U.P. does not seek to discipline private respondent. Indeed, as
the appellate court observed, private respondent is no longer within "the ambit of disciplinary powers of the U.P."
Private respondent cannot even be punished since, as she claims, the penalty for acts of dishonesty in administrative
disciplinary proceedings is suspension from the University for at least one year. What U.P., through the Board of
Regents, seeks to do is to protect its academic integrity by withdrawing from private respondent an academic degree
she obtained through fraud.

WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and the petition for mandamus is hereby
DISMISSED.1âwphi1.nêt

SO ORDERED.

Bellosillo, Quisumbing and Buena, JJ., concur.

Footnotes

1 Per Associate Justice Artemio G. Tuquero and concurred in by Associate Justices Jorge S. Imperial and Eubulo G.
Verzola.

2 Stated as 1883 in the Petition for Certiorari.

3 Records, p. 26.

4 Ibid.

5 Supra, note 3.

6 Dr. Manuel Teodoro was absent during the meeting.

54
7 Records, p. 173.

8 Records, p. 39.

9 Rollo, pp. 201-202.

10 Id., p. 133.

11 Records, p. 346.

12 Id., p. 179.

13 Records, p. 49.

14 Id.; p. 409.

15 Id., pp. 403-406.

16 Rollo, p. 137.

17 Records, p. 192.

18 Commissioner Ordoñez sent a letter to the Board of Regents requesting it to defer action on private respondent's
case until the latter had been given the opportunity to be heard. U.P. President Emil Q. Javier responded with a letter,
dated February 17, 1995, assuring Commissioner Ordoñez that the decision on private respondent's case was arrived at
after compliance with the requirements of due process.

19 It appears that the case was later transferred to Branch 227.

20 Rollo, pp. 83-97.

21 Id., p. 56.

22 Rollo, pp. 33-34.

23 RULES OF COURT, RULE 65, §3; Anchangco, Jr. vs. Ombudsman, 268 SCRA 301 (1997).

24 227 SCRA 342 (1993).

25 Supra, at 361-362.

26 Rollo, pp. 54-55.

27 Helpmate, Inc. v. National Labor Relations Commission, G.R. 112323, July 28, 1997; M. Ramirez Industries v. The
Honorable Secretary of Labor and Employment, G.R. 89894, January 3, 1997.

28 Naguiat v. National Labor Relations Commission, 269 SCRA 564 (1997).

29 Records, pp. 48-49.

30 Id., pp. 50-58.

31 Id., pp. 59-65; 79-80.

32 National Federation of Labor v. NLRC, 283 SCRA 275 (1997).

33 University of the Philippines v. Ligot-Telan, 227 SCRA 342 (1993).

34 222 SCRA 644 (1993).

35 Art. XIV, §5.

55
36 Art. XV, §8 (2).

37 68 SCRA 277 (1975).

38 Act No. 1897, §4.

39 Id., §9.

40 Licup v. University of San Carlos, 178 SCRA 637 (1989).

41 Records, p. 192.

42 RULES OF COURT, RULE 131, §3 (m).

56
MCREYNOLDS, J., Opinion of the Court

SUPREME COURT OF THE UNITED STATES

262 U.S. 390

Meyer v. State of Nebraska

ERROR TO THE SUPREME. COURT OF THE STATE OF NEBRASKA

No. 325 Argued: February 23, 1923 --- Decided: June 4, 1923
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 [p397] 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, [p398]
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. [p399] 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.

57
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 [p400] 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, 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 [p401] 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:

58
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, [p402] 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. [p403] Tanner, supra, p.
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. 412, infra.].

59
MCREYNOLDS, J., Opinion of the Court

SUPREME COURT OF THE UNITED STATES

268 U.S. 510

Pierce v. Society of Sisters

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON

Argued: March 16, 17, 1925 --- Decided: June 1, 1925

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining [p530]
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 [p531] 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 [p532]
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 [p533]
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;

60
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 [p534] 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 [p535] 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,
255; Western Turf Association v. Greenberg, 204 U.S. 359, 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
[p536] 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.

61
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.>

62
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 118295 May 2, 1997

WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate and as
taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House of Representatives and as
taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION,
NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT
INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC.,
and PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as non-governmental
organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO
AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA.
MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEÑA, SANTANINA RASUL,
RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities as
members of the Philippine Senate who concurred in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of
Budget and Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his capacity as Secretary
of Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of Finance; ROBERTO ROMULO, in his
capacity as Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as Executive Secretary,
respondents.

PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto of the vast
majority of countries has revolutionized international business and economic relations amongst states. It has
irreversibly propelled the world towards trade liberalization and economic globalization. Liberalization, globalization,
deregulation and privatization, the third-millennium buzz words, are ushering in a new borderless world of business by
sweeping away as mere historical relics the heretofore traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls.
Finding market niches and becoming the best in specific industries in a market-driven and export-oriented global
scenario are replacing age-old "beggar-thy-neighbor" policies that unilaterally protect weak and inefficient domestic
producers of goods and services. In the words of Peter Drucker, the well-known management guru, "Increased
participation in the world economy has become the key to domestic economic growth and prosperity."

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the establishment of
three multilateral institutions — inspired by that grand political body, the United Nations — were discussed at
Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; the second, the International Monetary Fund (IMF)
which was to deal with currency problems; and the third, the International Trade Organization (ITO), which was to
foster order and predictability in world trade and to minimize unilateral protectionist policies that invite challenge, even
retaliation, from other states. However, for a variety of reasons, including its non-ratification by the United States, the
ITO, unlike the IMF and WB, never took off. What remained was only GATT — the General Agreement on Tariffs
and Trade. GATT was a collection of treaties governing access to the economies of treaty adherents with no
institutionalized body administering the agreements or dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo Round and
the Uruguay Round, the world finally gave birth to that administering body — the World Trade Organization — with
the signing of the "Final Act" in Marrakesh, Morocco and the ratification of the WTO Agreement by its members. 1

63
Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as articulated
by President Fidel V. Ramos in two letters to the Senate (infra), of improving "Philippine access to foreign markets,
especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural and
industrial products." The President also saw in the WTO the opening of "new opportunities for the services sector . . . ,
(the reduction of) costs and uncertainty associated with exporting . . . , and (the attraction of) more investments into the
country." Although the Chief Executive did not expressly mention it in his letter, the Philippines — and this is of
special interest to the legal profession — will benefit from the WTO system of dispute settlement by judicial
adjudication through the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal. Heretofore, trade disputes were settled mainly through negotiations where solutions were arrived at
frequently on the basis of relative bargaining strengths, and where naturally, weak and underdeveloped countries were
at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of member-countries on the
same footing as Filipinos and local products" and (2) that the WTO "intrudes, limits and/or impairs" the constitutional
powers of both Congress and the Supreme Court, the instant petition before this Court assails the WTO Agreement for
violating the mandate of the 1987 Constitution to "develop a self-reliant and independent national economy effectively
controlled by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino
labor, domestic materials and locally produced goods."

Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade liberalization and
economic globalization? Does it proscribe Philippine integration into a global economy that is liberalized, deregulated
and privatized? These are the main questions raised in this petition for certiorari, prohibition and mandamus under Rule
65 of the Rules of Court praying (1) for the nullification, on constitutional grounds, of the concurrence of the Philippine
Senate in the ratification by the President of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement through
the release and utilization of public funds, the assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various executive offices concerned therewith. This
concurrence is embodied in Senate Resolution No. 97, dated December 14, 1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and Industry (Secretary
Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in Marrakesh, Morocco,
the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).

By signing the Final Act, 2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities,
with a view to seeking approval of the Agreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from the President
of the Philippines, 3 stating among others that "the Uruguay Round Final Act is hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution."

On August 13, 1994, the members of the Philippine Senate received another letter from the President of the Philippines
4 likewise dated August 11, 1994, which stated among others that "the Uruguay Round Final Act, the Agreement
Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services are hereby submitted to the Senate for its concurrence pursuant to Section 21,
Article VII of the Constitution."

On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of P.S. 1083, a
resolution entitled "Concurring in the Ratification of the Agreement Establishing the World Trade Organization." 5

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is hereby resolved,
that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization." 6 The text of the WTO Agreement is written on pages 137 et seq. of
Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and includes various agreements and

64
associated legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to
as Multilateral Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual

Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing

the Settlement of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed 7 the Instrument of Ratification, declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines, after having
seen and considered the aforementioned Agreement Establishing the World Trade Organization and the agreements and
associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral
parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm the same and every Article
and Clause thereof.

To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the Agreement Proper
and "the associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are
integral parts thereof."

On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its integral
annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding on
Commitments in Financial Services. In his Memorandum dated May 13, 1996, 8 the Solicitor General describes these
two latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of matters, such
as measures in favor of least developed countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute settlement.

65
The Understanding on Commitments in Financial Services dwell on, among other things, standstill or limitations and
qualifications of commitments to existing non-conforming measures, market access, national treatment, and definitions
of non-resident supplier of financial services, commercial presence and new financial service.

On December 29, 1994, the present petition was filed. After careful deliberation on respondents' comment and
petitioners' reply thereto, the Court resolved on December 12, 1995, to give due course to the petition, and the parties
thereafter filed their respective memoranda. The court also requested the Honorable Lilia R. Bautista, the Philippine
Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as
"Bautista Paper," 9 for brevity, (1) providing a historical background of and (2) summarizing the said agreements.

During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the transcript
of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to the
Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2) copies of the multi-
volume WTO Agreement and other documents mentioned in the Final Act, as soon as possible.

After receipt of the foregoing documents, the Court said it would consider the case submitted for resolution. In a
Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the 36-volume Uruguay
Round of Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996, he listed the various
"bilateral or multilateral treaties or international instruments involving derogation of Philippine sovereignty."
Petitioners, on the other hand, submitted their Compliance dated January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the deliberations and voting leading to the
concurrence are estopped from impugning the validity of the Agreement Establishing the World Trade Organization or
of the validity of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the
provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution.

D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict and
impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987 Philippine
Constitution is "vested in the Congress of the Philippines";

E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the exercise
of judicial power.

F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or
excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or
excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing the World Trade
Organization, and not with the Presidential submission which included the Final Act, Ministerial Declaration and
Decisions, and the Understanding on Commitments in Financial Services.

On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues raised by petitioners
into the following": 10

1. Whether or not the provisions of the "Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that agreement"
cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19, Article II and Sections
10 and 12, Article XII of the 1987 Constitution.

66
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of legislative
power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this Honorable
Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate "in the ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization" implied rejection of the treaty embodied in the Final Act.

By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has effectively
ignored three, namely: (1) whether the petition presents a political question or is otherwise not justiciable; (2) whether
petitioner-members of the Senate (Wigberto E. Tañada and Anna Dominique Coseteng) are estopped from joining this
suit; and (3) whether the respondent-members of the Senate acted in grave abuse of discretion when they voted for
concurrence in the ratification of the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:

(1) The "political question" issue — being very fundamental and vital, and being a matter that probes into the
very jurisdiction of this Court to hear and decide this case — was deliberated upon by the Court and will thus be ruled
upon as the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have
effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in respondents'
favor, will not cause the petition's dismissal as there are petitioners other than the two senators, who are not vulnerable
to the defense of estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as an
integral part of the disposition of the four issues raised by the Solicitor General.

During its deliberations on the case, the Court noted that the respondents did not question the locus standi of
petitioners. Hence, they are also deemed to have waived the benefit of such issue. They probably realized that grave
constitutional issues, expenditures of public funds and serious international commitments of the nation are involved
here, and that transcendental public interest requires that the substantive issues be met head on and decided on the
merits, rather than skirted or deflected by procedural matters. 11

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED, DOES
THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE
SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?

(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR IMPAIR
THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?

(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL
POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?

(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON COMMITMENTS IN
FINANCIAL SERVICES?

The First Issue: Does the Court

Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question
thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld." 12 Once a "controversy as to the application or interpretation of a constitutional provision is

67
raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide." 13

The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set out in the 1987
Constitution, 15 as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of discretion on the
part of any branch or instrumentality of government including Congress. It is an innovation in our political law. 16 As
explained by former Chief Justice Roberto Concepcion, 17 "the judiciary is the final arbiter on the question of whether
or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature."

As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress from or abandon its
sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it
in appropriate cases, committed by any officer, agency, instrumentality or department of the government.

As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in the
ordinary course of law, we have no hesitation at all in holding that this petition should be given due course and the vital
questions raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and mandamus
are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials. On this, we have no equivocation.

We should stress that, in deciding to take jurisdiction over this petition, this Court will not review the wisdom of the
decision of the President and the Senate in enlisting the country into the WTO, or pass upon the merits of trade
liberalization as a policy espoused by said international body. Neither will it rule on the propriety of the government's
economic policy of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other import/trade barriers.
Rather, it will only exercise its constitutional duty "to determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction" on the part of the Senate in ratifying the WTO Agreement and its
three annexes.

Second Issue: The WTO Agreement

and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.

Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating "economic nationalism" are
violated by the so-called "parity provisions" and "national treatment" clauses scattered in various parts not only of the
WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations and in the Understanding on
Commitments in Financial Services.

Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10 and 12, Article XII,
of the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES
AND STATE POLICIES

xxx xxx xxx

Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

xxx xxx xxx

Article XII

NATIONAL ECONOMY AND PATRIMONY

68
xxx xxx xxx

Sec. 10. . . . The Congress shall enact measures that will encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give
preference to qualified Filipinos.

xxx xxx xxx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods,
and adopt measures that help make them competitive.

Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions quoted in
their memorandum: 19

a) In the area of investment measures related to trade in goods (TRIMS, for brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994, no Member shall apply any TRIM that
is inconsistent with the provisions of Article II or Article XI of GATT 1994.

2. An illustrative list of TRIMS that are inconsistent with the obligations of general elimination of quantitative
restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in the Annex to this Agreement."
(Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121, emphasis
supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article
III of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative
rulings, or compliance with which is necessary to obtain an advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether
specified in terms of particular products, in terms of volume or value of products, or in terms of proportion of volume
or value of its local production; or

(b) that an enterprise's purchases or use of imported products be limited to an amount related to the volume or
value of local products that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided
for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable under domestic laws
or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the local production that it exports;

(b) the importation by an enterprise of products used in or related to its local production by restricting its access
to foreign exchange inflows attributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particular products, in terms of volume or value of
products, or in terms of a preparation of volume or value of its local production. (Annex to the Agreement on Trade-
Related Investment Measures, Vol. 27, Uruguay Round Legal Documents, p. 22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

69
The products of the territory of any contracting party imported into the territory of any other contracting party shall be
accorded treatment no less favorable than that accorded to like products of national origin in respect of laws,
regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use,
the provisions of this paragraph shall not prevent the application of differential internal transportation charges which
are based exclusively on the economic operation of the means of transport and not on the nationality of the product."
(Article III, GATT 1947, as amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September
1948, 62 UMTS 82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1,
Uruguay Round, Legal Instruments p. 177, emphasis supplied).

(b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):

Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its
own nationals with regard to the protection of intellectual property. . . (par. 1 Article 3, Agreement on Trade-Related
Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432 (emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out therein, each
Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the
supply of services, treatment no less favourable than it accords to its own like services and service suppliers.

2. A Member may meet the requirement of paragraph I by according to services and service suppliers of any
other Member, either formally suppliers of any other Member, either formally identical treatment or formally different
treatment to that it accords to its own like services and service suppliers.

3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the
conditions of completion in favour of services or service suppliers of the Member compared to like services or service
suppliers of any other Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay Round
Legal Instruments, p. 22610 emphasis supplied).

It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO Agreement "place
nationals and products of member countries on the same footing as Filipinos and local products," in contravention of
the "Filipino First" policy of the Constitution. They allegedly render meaningless the phrase "effectively controlled by
Filipinos." The constitutional conflict becomes more manifest when viewed in the context of the clear duty imposed on
the Philippines as a WTO member to ensure the conformity of its laws, regulations and administrative procedures with
its obligations as provided in the annexed agreements. 20 Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate the preferential treatment
accorded to Filipino labor, domestic materials and locally produced goods.

On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are not self-
executing and merely set out general policies; (2) that these nationalistic portions of the Constitution invoked by
petitioners should not be read in isolation but should be related to other relevant provisions of Art. XII, particularly
Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with Constitution; and (4) that the
WTO Agreement contains sufficient provisions to protect developing countries like the Philippines from the harshness
of sudden trade liberalization.

We shall now discuss and rule on these arguments.

Declaration of Principles
Not Self-Executing

By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart of this
article in the 1935 Constitution 21 is called the "basic political creed of the nation" by Dean Vicente Sinco. 22 These
principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. 23
They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature
in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato, 24 the principles and state
policies enumerated in Article II and some sections of Article XII are not "self-executing provisions, the disregard of
which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights
but guidelines for legislation."

70
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative enactments to
implement the, thus:

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of Youth) of
Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987
Constitution, suffice it to state also that these are merely statements of principles and policies. As such, they are
basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such
principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcement
through the courts. They were rather directives addressed to the executive and to the legislature. If the executive and
the legislature failed to heed the directives of the article, the available remedy was not judicial but political. The
electorate could express their displeasure with the failure of the executive and the legislature through the language of
the ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of board constitutional principles are sourced from
basic considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of social and
economic policy making." Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa vs. Factoran, Jr., 26
explained these reasons as follows:

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a right cast in
language of a significantly lower order of generality than Article II (15) of the Constitution — that is or may be
violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can
validly render judgment grating all or part of the relief prayed for. To my mind, the court should be understood as
simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general
policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial
court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a
motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable
legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right
claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable
to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged
or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second
paragraph of Section 1 of Article VIII of the Constitution which reads:

Sec. 1. ...

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of environmental protection and management, our courts
have no claim to special technical competence and experience and professional qualification. Where no specific,
operable norms and standards are shown to exist, then the policy making departments — the legislative and executive
departments — must be given a real and effective opportunity to fashion and promulgate those norms and standards,
and to implement them before the courts should intervene.

Economic Nationalism Should Be Read with

Other Constitutional Mandates to Attain
Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating to the
national economy and patrimony, should be read and understood in relation to the other sections in said article,
especially Secs. 1 and 13 thereof which read:

71
Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a
sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an
expanding productivity as the key to raising the quality of life for all especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian
reform, through industries that make full and efficient use of human and natural resources, and which are competitive
in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign
competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum
opportunity to develop. . . .

xxx xxx xxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements
of exchange on the basis of equality and reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic development, as
follows:

1. A more equitable distribution of opportunities, income and wealth;

2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the people;
and

3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged.

With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by expressing
preference in favor of qualified Filipinos "in the grant of rights, privileges and concessions covering the national
economy and patrimony" 27 and in the use of "Filipino labor, domestic materials and locally-produced goods"; (2) by
mandating the State to "adopt measures that help make them competitive; 28 and (3) by requiring the State to "develop
a self-reliant and independent national economy effectively controlled by Filipinos." 29 In similar language, the
Constitution takes into account the realities of the outside world as it requires the pursuit of "a trade policy that serves
the general welfare and utilizes all forms and arrangements of exchange on the basis of equality ad reciprocity"; 30 and
speaks of industries "which are competitive in both domestic and foreign markets" as well as of the protection of
"Filipino enterprises against unfair foreign competition and trade practices."

It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al., 31 this Court
held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete
in itself and which needs no further guidelines or implementing laws or rule for its enforcement. From its very words
the provision does not require any legislation to put it in operation. It is per se judicially enforceable." However, as the
constitutional provision itself states, it is enforceable only in regard to "the grants of rights, privileges and concessions
covering national economy and patrimony" and not to every aspect of trade and commerce. It refers to exceptions
rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather,
the issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.

All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the
same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are
unfair. 32 In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine economy. While the Constitution does not
encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that
is unfair.

WTO Recognizes Need to

Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak and
developing economies, which comprise the vast majority of its members. Unlike in the UN where major states have

72
permanent seats and veto powers in the Security Council, in the WTO, decisions are made on the basis of sovereign
equality, with each member's vote equal in weight to that of any other. There is no WTO equivalent of the UN Security
Council.

WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and the General
Council shall be taken by the majority of the votes cast, except in cases of interpretation of the Agreement or waiver of
the obligation of a member which would require three fourths vote. Amendments would require two thirds vote in
general. Amendments to MFN provisions and the Amendments provision will require assent of all members. Any
member may withdraw from the Agreement upon the expiration of six months from the date of notice of withdrawals.
33

Hence, poor countries can protect their common interests more effectively through the WTO than through one-on-one
negotiations with developed countries. Within the WTO, developing countries can form powerful blocs to push their
economic agenda more decisively than outside the Organization. This is not merely a matter of practical alliances but a
negotiating strategy rooted in law. Thus, the basic principles underlying the WTO Agreement recognize the need of
developing countries like the Philippines to "share in the growth in international trade commensurate with the needs of
their economic development." These basic principles are found in the preamble 34 of the WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to
raising standards of living, ensuring full employment and a large and steadily growing volume of real income and
effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use
of the world's resources in accordance with the objective of sustainable development, seeking both to protect and
preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and
concerns at different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially
the least developed among them, secure a share in the growth in international trade commensurate with the needs of
their economic development,

Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements
directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory
treatment in international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system encompassing the
General Agreement on Tariffs and Trade, the results of past trade liberalization efforts, and all of the results of the
Uruguay Round of Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectives underlying this multilateral trading system, . . .
(emphasis supplied.)

Specific WTO Provisos

Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles, the WTO
Agreement grants developing countries a more lenient treatment, giving their domestic industries some protection from
the rush of foreign competition. Thus, with respect to tariffs in general, preferential treatment is given to developing
countries in terms of the amount of tariff reduction and the period within which the reduction is to be spread out.
Specifically, GATT requires an average tariff reduction rate of 36% for developed countries to be effected within a
period of six (6) years while developing countries — including the Philippines — are required to effect an average
tariff reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to agricultural products
by 20% over six (6) years, as compared to only 13% for developing countries to be effected within ten (10) years.

In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their budgetary
outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a period of six (6)
years. For developing countries, however, the reduction rate is only two-thirds of that prescribed for developed
countries and a longer period of ten (10) years within which to effect such reduction.

73
Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices including
anti-dumping measures, countervailing measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these measures. There is hardly therefore any
basis for the statement that under the WTO, local industries and enterprises will all be wiped out and that Filipinos will
be deprived of control of the economy. Quite the contrary, the weaker situations of developing nations like the
Philippines have been taken into account; thus, there would be no basis to say that in joining the WTO, the respondents
have gravely abused their discretion. True, they have made a bold decision to steer the ship of state into the yet
uncharted sea of economic liberalization. But such decision cannot be set aside on the ground of grave abuse of
discretion, simply because we disagree with it or simply because we believe only in other economic policies. As earlier
stated, the Court in taking jurisdiction of this case will not pass upon the advantages and disadvantages of trade
liberalization as an economic policy. It will only perform its constitutional duty of determining whether the Senate
committed grave abuse of discretion.

Constitution Does Not

Rule Out Foreign Competition

Furthermore, the constitutional policy of a "self-reliant and independent national economy" 35 does not necessarily rule
out the entry of foreign investments, goods and services. It contemplates neither "economic seclusion" nor
"mendicancy in the international community." As explained by Constitutional Commissioner Bernardo Villegas,
sponsor of this constitutional policy:

Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence on
external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means
avoiding mendicancy in the international community. Independence refers to the freedom from undue foreign control
of the national economy, especially in such strategic industries as in the development of natural resources and public
utilities. 36

The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination" cannot be struck
down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside
from envisioning a trade policy based on "equality and reciprocity," 37 the fundamental law encourages industries that
are "competitive in both domestic and foreign markets," thereby demonstrating a clear policy against a sheltered
domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the
best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to
compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have
demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers,

Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it contain
any specific pronouncement that Filipino companies should be pampered with a total proscription of foreign
competition. On the other hand, respondents claim that WTO/GATT aims to make available to the Filipino consumer
the best goods and services obtainable anywhere in the world at the most reasonable prices. Consequently, the question
boils down to whether WTO/GATT will favor the general welfare of the public at large.

Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?

Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as promised by its promoters
— expand the country's exports and generate more employment?

Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable rates to the
Filipino public?

The responses to these questions involve "judgment calls" by our policy makers, for which they are answerable to our
people during appropriate electoral exercises. Such questions and the answers thereto are not subject to judicial
pronouncements based on grave abuse of discretion.

Constitution Designed to Meet

Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in 1987. That
does not mean however that the Charter is necessarily flawed in the sense that its framers might not have anticipated

74
the advent of a borderless world of business. By the same token, the United Nations was not yet in existence when the
1935 Constitution became effective. Did that necessarily mean that the then Constitution might not have contemplated
a diminution of the absoluteness of sovereignty when the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the decisions of various UN organs like the Security
Council?

It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of contemporary
events. They should be interpreted to cover even future and unknown circumstances. It is to the credit of its drafters
that a Constitution can withstand the assaults of bigots and infidels but at the same time bend with the refreshing winds
of change necessitated by unfolding events. As one eminent political law writer and respected jurist 38 explains:

The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and frame-work
only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not in a twinkling by mandate
of our delegates, but slowly "in the crucible of Filipino minds and hearts," where it will in time develop its sinews and
gradually gather its strength and finally achieve its substance. In fine, the Constitution cannot, like the goddess Athena,
rise full-grown from the brow of the Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It
must grow with the society it seeks to re-structure and march apace with the progress of the race, drawing from the
vicissitudes of history the dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living
law attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed Agreements." 39 Petitioners maintain that this
undertaking "unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative power which under
Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the
sovereign powers of the Philippines because this means that Congress could not pass legislation that will be good for
our national interest and general welfare if such legislation will not conform with the WTO Agreement, which not only
relates to the trade in goods . . . but also to the flow of investments and money . . . as well as to a whole slew of
agreements on socio-cultural matters . . . 40

More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged in the
Congress. 41 And while the Constitution allows Congress to authorize the President to fix tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or imposts, such authority is subject to "specified limits and
. . . such limitations and restrictions" as Congress may provide, 42 as in fact it did under Sec. 401 of the Tariff and
Customs Code.

Sovereignty Limited by
International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on this issue.
However, while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is
however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a
member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the
country from the rest of the world. In its Declaration of Principles and State Policies, the Constitution "adopts the
generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity, with all nations." 43 By the doctrine of incorporation, the country is
bound by generally accepted principles of international law, which are considered to be automatically part of our own
laws. 44 One of the oldest and most fundamental rules in international law is pacta sunt servanda — international
agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken." 45

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations
may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a
convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted
objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties
have been used to record agreements between States concerning such widely diverse matters as, for example, the lease
of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the
formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing
conduct in peace and the establishment of international organizations. 46 The sovereignty of a state therefore cannot in
fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very

75
nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John
F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of
interdependence is here." 47

UN Charter and Other Treaties

Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its
sovereign rights under the "concept of sovereignty as auto-limitation." 47-A Under Article 2 of the UN Charter, "(a)ll
members shall give the United Nations every assistance in any action it takes in accordance with the present Charter,
and shall refrain from giving assistance to any state against which the United Nations is taking preventive or
enforcement action." Such assistance includes payment of its corresponding share not merely in administrative
expenses but also in expenditures for the peace-keeping operations of the organization. In its advisory opinion of July
20, 1961, the International Court of Justice held that money used by the United Nations Emergency Force in the Middle
East and in the Congo were "expenses of the United Nations" under Article 17, paragraph 2, of the UN Charter. Hence,
all its members must bear their corresponding share in such expenses. In this sense, the Philippine Congress is
restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping
expenses or not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic
privileges and immunities, thereby limiting again the exercise of sovereignty of members within their own territory.
Another example: although "sovereign equality" and "domestic jurisdiction" of all members are set forth as underlying
principles in the UN Charter, such provisos are however subject to enforcement measures decided by the Security
Council for the maintenance of international peace and security under Chapter VII of the Charter. A final example:
under Article 103, "(i)n the event of a conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement, their obligation under the present charter
shall prevail," thus unquestionably denying the Philippines — as a member — the sovereign power to make a choice as
to which of conflicting obligations, if any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other international pacts — both bilateral and
multilateral — that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor General in his
Compliance dated October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed, among
others, to exempt from tax, income received in the Philippines by, among others, the Federal Reserve Bank of the
United States, the Export/Import Bank of the United States, the Overseas Private Investment Corporation of the United
States. Likewise, in said convention, wages, salaries and similar remunerations paid by the United States to its citizens
for labor and personal services performed by them as employees or officials of the United States are exempt from
income tax by the Philippines.

(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation with respect
to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.

(d) Bilateral convention with the French Republic for the avoidance of double taxation.

(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all customs duties,
inspection fees and other duties or taxes aircrafts of South Korea and the regular equipment, spare parts and supplies
arriving with said aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs duties,
excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils, spare parts, regular
equipment, stores on board Japanese aircrafts while on Philippine soil.

(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the same
privileges as those granted to Japanese and Korean air carriers under separate air service agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted Israeli
nationals from the requirement of obtaining transit or visitor visas for a sojourn in the Philippines not exceeding 59
days.

(i) Bilateral agreement with France exempting French nationals from the requirement of obtaining transit and
visitor visa for a sojourn not exceeding 59 days.

76
(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special Missions
in the Philippines are inviolable and its agents can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties, taxes and related charges.

(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines agreed to be governed by
the Vienna Convention on the Law of Treaties.

(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International Court of
Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the interpretation of a treaty,
any question of international law, the existence of any fact which, if established, would constitute a breach "of
international obligation."

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation,
eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is the
reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines,
its officials and its citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of the sea, or
trade, constrain domestic political sovereignty through the assumption of external obligations. But unless anarchy in
international relations is preferred as an alternative, in most cases we accept that the benefits of the reciprocal
obligations involved outweigh the costs associated with any loss of political sovereignty. (T)rade treaties that structure
relations by reference to durable, well-defined substantive norms and objective dispute resolution procedures reduce
the risks of larger countries exploiting raw economic power to bully smaller countries, by subjecting power relations to
some form of legal ordering. In addition, smaller countries typically stand to gain disproportionately from trade
liberalization. This is due to the simple fact that liberalization will provide access to a larger set of potential new
trading relationship than in case of the larger country gaining enhanced success to the smaller country's market. 48

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the
Constitution, based on the rationale that the Philippines "adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of . . . cooperation and amity with all nations."

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the power of the Supreme Court to promulgate
rules concerning pleading, practice and procedures. 50

To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate its full text as follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in
paragraph 1 (b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial
authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is
different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances,
that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the
contrary, be deemed to have been obtained by the patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the
patent has been unable through reasonable efforts to determine the process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged
infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in
subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken into account.

77
From the above, a WTO Member is required to provide a rule of disputable (not the words "in the absence of proof to
the contrary") presumption that a product shown to be identical to one produced with the use of a patented process shall
be deemed to have been obtained by the (illegal) use of the said patented process, (1) where such product obtained by
the patented product is new, or (2) where there is "substantial likelihood" that the identical product was made with the
use of the said patented process but the owner of the patent could not determine the exact process used in obtaining
such identical product. Hence, the "burden of proof" contemplated by Article 34 should actually be understood as the
duty of the alleged patent infringer to overthrow such presumption. Such burden, properly understood, actually refers to
the "burden of evidence" (burden of going forward) placed on the producer of the identical (or fake) product to show
that his product was produced without the use of the patented process.

The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of the presumption
provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the existence of the alleged
identical product, the fact that it is "identical" to the genuine one produced by the patented process and the fact of
"newness" of the genuine product or the fact of "substantial likelihood" that the identical product was made by the
patented process.

The foregoing should really present no problem in changing the rules of evidence as the present law on the subject,
Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar presumption in cases of
infringement of patented design or utility model, thus:

Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility model shall consist in unauthorized
copying of the patented design or utility model for the purpose of trade or industry in the article or product and in the
making, using or selling of the article or product copying the patented design or utility model. Identity or substantial
identity with the patented design or utility model shall constitute evidence of copying. (emphasis supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies only if (1)
the product obtained by the patented process in NEW or (2) there is a substantial likelihood that the identical product
was made by the process and the process owner has not been able through reasonable effort to determine the process
used. Where either of these two provisos does not obtain, members shall be free to determine the appropriate method of
implementing the provisions of TRIPS within their own internal systems and processes.

By and large, the arguments adduced in connection with our disposition of the third issue — derogation of legislative
power — will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than justifies such
intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is with
due process and the concept of adversarial dispute settlement inherent in our judicial system.

So too, since the Philippine is a signatory to most international conventions on patents, trademarks and copyrights, the
adjustment in legislation and rules of procedure will not be substantial. 52

Fifth Issue: Concurrence Only in the WTO Agreement and

Not in Other Documents Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes — but not in the other documents
referred to in the Final Act, namely the Ministerial Declaration and Decisions and the Understanding on Commitments
in Financial Services — is defective and insufficient and thus constitutes abuse of discretion. They submit that such
concurrence in the WTO Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn
was the document signed by Secretary Navarro, in representation of the Republic upon authority of the President. They
contend that the second letter of the President to the Senate 53 which enumerated what constitutes the Final Act should
have been the subject of concurrence of the Senate.

"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the proceedings of
a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and
other acts agreed upon and signed by the plenipotentiaries attending the conference." 54 It is not the treaty itself. It is
rather a summary of the proceedings of a protracted conference which may have taken place over several years. The
text of the "Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations" is contained in
just one page 55 in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final
Act, Secretary Navarro as representative of the Republic of the Philippines undertook:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities
with a view to seeking approval of the Agreement in accordance with their procedures; and

78
(b) to adopt the Ministerial Declarations and Decisions.

The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its
signatories, namely, concurrence of the Senate in the WTO Agreement.

The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were approved by
the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the members can meet "to
give effect to those provisions of this Agreement which invoke joint action, and generally with a view to facilitating the
operation and furthering the objectives of this Agreement." 56

The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the
Philippines. It applies only to those 27 Members which "have indicated in their respective schedules of commitments
on standstill, elimination of monopoly, expansion of operation of existing financial service suppliers, temporary entry
of personnel, free transfer and processing of information, and national treatment with respect to access to payment,
clearing systems and refinancing available in the normal course of business." 57

On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed included as its
integral parts, 58 as follows:

Article II

Scope of the WTO

1. The WTO shall provide the common institutional frame-work for the conduct of trade relations among its
Members in matters to the agreements and associated legal instruments included in the Annexes to this Agreement.

2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3, (hereinafter referred to as
"Multilateral Agreements") are integral parts of this Agreement, binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as "Plurilateral
Trade Agreements") are also part of this Agreement for those Members that have accepted them, and are binding on
those Members. The Plurilateral Trade Agreements do not create either obligation or rights for Members that have not
accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as
"GATT 1994") is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to
the Final Act adopted at the conclusion of the Second Session of the Preparatory Committee of the United Nations
Conference on Trade and Employment, as subsequently rectified, amended or modified (hereinafter referred to as
"GATT 1947").

It should be added that the Senate was well-aware of what it was concurring in as shown by the members' deliberation
on August 25, 1994. After reading the letter of President Ramos dated August 11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60

THE CHAIRMAN:Yes. Now, the question of the validity of the submission came up in the first day hearing of this
Committee yesterday. Was the observation made by Senator Tañada that what was submitted to the Senate was not the
agreement on establishing the World Trade Organization by the final act of the Uruguay Round which is not the same
as the agreement establishing the World Trade Organization? And on that basis, Senator Tolentino raised a point of
order which, however, he agreed to withdraw upon understanding that his suggestion for an alternative solution at that
time was acceptable. That suggestion was to treat the proceedings of the Committee as being in the nature of briefings
for Senators until the question of the submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new . . . is he making a new submission which
improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding, it was his
intention to clarify all matters by giving this letter.

THE CHAIRMAN:Thank you.

Can this Committee hear from Senator Tañada and later on Senator Tolentino since they were the ones that raised this
question yesterday?

79
Senator Tañada, please.

SEN. TAÑADA: Thank you, Mr. Chairman.

Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to the Senate for
ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the World Trade Organization as
well as the Ministerial Declarations and Decisions, and the Understanding and Commitments in Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator Tolentino? And after him Senator Neptali
Gonzales and Senator Lina.

SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw the draft of
his earlier, and I think it now complies with the provisions of the Constitution, and with the Final Act itself . The
Constitution does not require us to ratify the Final Act. It requires us to ratify the Agreement which is now being
submitted. The Final Act itself specifies what is going to be submitted to with the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO Agreement for the
consideration of the respective competent authorities with a view to seeking approval of the Agreement in accordance
with their procedures.

In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification or acceptance
as whatever their constitutional procedures may provide but it is the World Trade Organization Agreement. And if that
is the one that is being submitted now, I think it satisfies both the Constitution and the Final Act itself .

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES.Mr. Chairman, my views on this matter are already a matter of record. And they had been
adequately reflected in the journal of yesterday's session and I don't see any need for repeating the same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the abundance of
question. Then the new submission is, I believe, stating the obvious and therefore I have no further comment to make.

Epilogue

In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking this
Court's constitutionally imposed duty "to determine whether or not there has been grave abuse of discretion amounting
to lack or excess of jurisdiction" on the part of the Senate in giving its concurrence therein via Senate Resolution No.
97. Procedurally, a writ of certiorari grounded on grave abuse of discretion may be issued by the Court under Rule 65
of the Rules of Court when it is amply shown that petitioners have no other plain, speedy and adequate remedy in the
ordinary course of law.

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. 61 Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so
gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law. 62 Failure on the part of the petitioner to show grave abuse of discretion will result in the
dismissal of the petition. 63

80
In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of two sovereign
houses of Congress and is thus entitled to great respect in its actions. It is itself a constitutional body independent and
coordinate, and thus its actions are presumed regular and done in good faith. Unless convincing proof and persuasive
arguments are presented to overthrow such presumptions, this Court will resolve every doubt in its favor. Using the
foregoing well-accepted definition of grave abuse of discretion and the presumption of regularity in the Senate's
processes, this Court cannot find any cogent reason to impute grave abuse of discretion to the Senate's exercise of its
power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution. 64

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an independent
national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor, products, domestic
materials and locally produced goods. But it is equally true that such principles — while serving as judicial and
legislative guides — are not in themselves sources of causes of action. Moreover, there are other equally fundamental
constitutional principles relied upon by the Senate which mandate the pursuit of a "trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity" and the promotion
of industries "which are competitive in both domestic and foreign markets," thereby justifying its acceptance of said
treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by
the adoption of the generally accepted principles of international law as part of the law of the land and the adherence of
the Constitution to the policy of cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement
thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign duty and power. We find no
"patent and gross" arbitrariness or despotism "by reason of passion or personal hostility" in such exercise. It is not
impossible to surmise that this Court, or at least some of its members, may even agree with petitioners that it is more
advantageous to the national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute
grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise
of our own judicial power and duty. Ineludably, what the Senate did was a valid exercise of its authority. As to whether
such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between
the elected policy makers and the people. As to whether the nation should join the worldwide march toward trade
liberalization and economic globalization is a matter that our people should determine in electing their policy makers.
After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of a member.

The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian Renaissance 65 where "the
East will become the dominant region of the world economically, politically and culturally in the next century." He
refers to the "free market" espoused by WTO as the "catalyst" in this coming Asian ascendancy. There are at present
about 31 countries including China, Russia and Saudi Arabia negotiating for membership in the WTO. Notwithstanding
objections against possible limitations on national sovereignty, the WTO remains as the only viable structure for
multilateral trading and the veritable forum for the development of international trade law. The alternative to WTO is
isolation, stagnation, if not economic self-destruction. Duly enriched with original membership, keenly aware of the
advantages and disadvantages of globalization with its on-line experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international strategy for economic prosperity and stability in the new
millennium. Let the people, through their duly authorized elected officers, make their free choice.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza, Francisco, Hermosisima, Jr.
and Torres, Jr., JJ., concur.

Padilla and Vitug, JJ., concur in the result.

Footnotes

1 In Annex "A" of her Memorandum, dated August 8, 1996, received by this Court on August 12, 1996,
Philippine Ambassador to the United Nations, World Trade Organization and other international organizations Lilia R.
Bautista (hereafter referred to as "Bautista Paper") submitted a "46-year Chronology" of GATT as follows:

1947 The birth of GATT. On 30 October 1947, the General Agreement on Tariffs and Trade (GATT) was signed
by 23 nations at the Palais des Nations in Geneva. The Agreement contained tariff concessions agreed to in the first
multilateral trade negotiations and a set of rules designed to prevent these concessions from being frustrated by
restrictive trade measures.

81
The 23 founding contracting parties were members of the Preparatory Committee established by the United Nations
Economic and Social Council in 1946 to draft the charter of the International Trade Organization (ITO). The ITO was
envisaged as the final leg of a triad of post-War economic agencies (the other two were the International Monetary
Fund and the International Bank for Reconstruction — later the World Bank).

In parallel with this task, the Committee members decided to negotiate tariff concessions among themselves. From
April to October 1947, the participants completed some 123 negotiations and established 20 schedules containing the
tariff reductions and bindings which became an integral part of GATT. These schedules resulting from the first Round
covered some 45,000 tariff concessions and about $10 billion in trade.

GATT was conceived as an interim measure that put into effect the commercial-policy provisions of the ITO. In
November, delegations from 56 countries met in Havana, Cuba, to consider the to ITO draft as a whole. After long and
difficult negotiations, some 53 countries signed the Final Act authenticating the text of the Havana Charter in March
1948. There was no commitment, however, from governments to ratification and, in the end, the ITO was stillborn,
leaving GATT as the only international instrument governing the conduct of world trade.

1948 Entry into force. On 1 January 1948, GATT entered into force. The 23 founding members were: Australia,
Belgium, Brazil, Burma, Canada, Ceylon, Chile, China, Cuba, Czechoslovakia, France, India, Lebanon, Luxembourg,
Netherlands, New Zealand, Norway, Pakistan, Southern Rhodesia, Syria, South Africa, United Kingdom and the
United States. The first Session of the Contracting Parties was held from February to March in Havana, Cuba. The
secretariat of the Interim Commission for the ITO, which served as the ad hoc secretariat of GATT, moved from Lake
Placid, New York, to Geneva. The Contracting Parties held their second session in Geneva from August to September.

1949 Second Round at Annecy. During the second Round of trade negotiations, held from April to August at
Annecy, France, the contracting parties exchanged some 5,000 tariff concessions. At their third Session, they also dealt
with the accession of ten more countries.

1950 Third Round at Torquay. From September 1950 to April 1951, the contracting parties exchanged some
8,700 tariff concessions in the English town, yielding tariff reduction of about 25 per cent in relation to the 1948 level.
Four more countries acceded to GATT. During the fifth Session of the Contracting Parties, the United States indicated
that the ITO Charter would not be re-submitted to the US Congress; this, in effect, meant that ITO would not come into
operation.

1956 Fourth Round at Geneva. The fourth Round was completed in May and produced some $2.5 billion worth
of tariff reductions. At the beginning of the year, the GATT commercial policy course for officials of developing
countries was inaugurated.

1958 The Haberler Report. GATT published Trends in International Trade in October. Known as the
"Haberler Report" in honour of Professor Gottfried Haberler, the chairman of the panel of eminent economists, it
provided initial guidelines for the work of GATT. The Contracting Parties at their 13th Sessions, attended by Ministers,
subsequently established three committees in GATT: Committee I to convene a further tariff negotiating conference;
Committee II to review the agricultural policies of member governments and Committee III to tackle the problem
facing developing countries in their trade. The establishment of the European Economic Community during the
previous year also demanded large-scale tariff negotiations under Article XXIV: 6 of the General Agreement.

1960 The Dillon Round. The fifth Round opened in September and was divided into two phases: the first was
concerned with negotiations with EEC member states for the creation of a single schedule of concessions for the
Community based on its Common External Tariff; and the second was a further general round of tariff negotiations.
Named in honour of US Under-Secretary of State Douglas Dillon who proposed the negotiations, the Round was
concluded in July 1962 and resulted in about 4,400 tariff concessions covering $4.9 billion of trade.

1961 The Short-Term Arrangement covering cotton textiles was agreed as an exception to the GATT rules. The
arrangement permitted the negotiation of quota restrictions affecting the exports of cotton-producing countries. In 1962
the "Short Term" Arrangement became the "Long term" Arrangement, lasting until 1974 when the Multifibre
Arrangement entered into force.

1964 The Kennedy Round. Meeting at Ministerial level, a Trade Negotiations Committee formally opened
the Kennedy Round in May. In June 1967, the Round's Final Act was signed by some 50 participating countries which
together accounted for 75 per cent of world trade. For the first time, negotiations departed from the product-by-product
approach used in the previous Rounds to an across-the-board or linear method of cutting tariffs for industrial goods.
The working hypothesis of a 50 per cent target cut in tariff levels was achieved in many areas. Concessions covered an

82
estimated total value of trade of about $410 billion. Separate agreements were reached on grains, chemical products
and a Code on Anti-Dumping.

1965 A New Chapter. The early 1960s marked the accession to the general Agreement of many newly-
independent developing countries. In February, the Contracting Parties, meeting in a special session, adopted the text of
Part IV on Trade and Development. The additional chapter to the GATT required developed countries to accord high
priority to the reduction of trade barriers to products of developing countries. A Committee on Trade and Development
was established to oversee the functioning of the new GATT provisions. In the preceding year, GATT had established
the International Trade Centre (ITC) to help developing countries in trade promotion and identification of potential
markets. Since 1968, the ITC had been jointly operated by GATT and the UN Conference on Trade and Development
(UNCTAD).

1973 The Tokyo Round. The seventh Round was launched by Ministers in September at the Japanese capital.
Some 99 countries participated in negotiating a comprehensive body of agreements covering both tariff and non-tariff
matters. At the end of the Round in November 1979, participants exchanged tariff reductions and bindings which
covered more than $300 billion of trade. As a result of these cuts, the weighted average tariff on manufactured goods in
the world's nine major industrial markets declined from 7.0 to 4.7 per cent. Agreements were reached in the following
areas: subsidies and countervailing measures, technical barriers to trade, import licensing procedures, government
procurement, customs valuation, a revised anti-dumping code, trade in bovine meat, trade in dairy products and trade in
civil aircraft. The first concrete result of the Round was the reduction of import duties and other trade barriers by
industrial countries on tropical products exported by developing countries.

1974 On 1 January 1974, the Arrangement Regarding International Trade in Textiles, otherwise known as the
Multifibre Arrangement (MFA), entered into force. It superseded the arrangements that had been governing trade in
cotton textiles since 1961. The MFA seeks to promote the expansion and progressive liberalization of trade in textile
products while at the same time avoiding disruptive effects in individual markets and lines of production. The MFA
was extended in 1978, 1982, 1986, 1991 and 1992. MFA members account for most of the world exports of textiles and
clothing which in 1986 amounted to US$128 billion.

1982 Ministerial Meeting. Meeting for the first time in nearly ten years, the GATT Ministers in November
at Geneva reaffirmed the validity of GATT rules for the conduct of international trade and committed themselves to
combating protectionist pressures. They also established a wide-ranging work programme for the GATT which was to
lay down the groundwork for a new Round 1986. The Uruguay Round. The GATT Trade Ministers meeting at Punta
del Este, Uruguay, launched the eighth Round of trade negotiations on 20 September. The Punta del Este Declaration,
while representing a single political undertaking, was divided into two sections. The first covered negotiations on trade
in goods and the second initiated negotiation on trade in services. In the area of trade in goods, the Ministers committed
themselves to a "standstill" on new trade measures inconsistent with their GATT obligations and to a "rollback"
programme aimed at phasing out existing inconsistent measures. Envisaged to last four years, negotiations started in
early February 1987 in the following areas tariffs, non-tariff measures, tropical products, natural resource-based
products, textiles and clothing, agriculture, subsidies, safe-guards, trade-related aspects of intellectual property rights
including trade in counterfeit goods, and trade-related investment measures. The work of other groups included a
review of GATT articles, the GATT dispute settlement procedure, the Tokyo Round agreements, as well as the
functioning of the GATT system as a whole.

1994 "GATT 1994" is the updated version of GATT 1947 and takes into account the substantive and institutional
changes negotiated in the Uruguay Round GATT 1994 is an integral part of the World Trade Organization established
on 1 January 1995. It is agreed that there be a one year transition period during which certain GATT 1947 bodies and
commitments would co-exist with those of the World Trade Organization.

2 The Final Act was signed by representatives of 125 entities, namely Algeria, Angola, Antigua and Barbuda,
Argentine Republic, Australia, Republic of Austria, State of Bahrain, People's Republic of Bangladesh, Barbados, The
Kingdom of Belgium Belize, Republic of Benin, Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso,
Burundi, Cameroon, Canada, Central African Republic, Chad, Chile, People's Republic of China, Colombia, Congo,
Costa Rica, Republic of Cote d'Ivoire, Cuba, Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth of
Dominica, Dominican Republic, Arab Republic of Egypt, El Salvador, European Communities, Republic of Fiji,
Finland, French Republic, Gabonese Republic, Gambia, Federal Republic of Germany, Ghana, Hellenic Republic,
Grenada, Guatemala, Republic of Guinea-Bissau, Republic of Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland,
India, Indonesia, Ireland, State of Israel, Italian Republic, Jamaica, Japan, Kenya, Korea, State of Kuwait, Kingdom of
Lesotho, Principality of Liechtenstein, Grand Duchy of Luxembourg, Macau, Republic of Madagascar, Republic of
Malawi, Malaysia, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic Republic of Mauritania,
Republic of Mauritius, United Mexican States, Kingdom of Morocco, Republic of Mozambique, Union of Myanmar,
Republic of Namibia, Kingdom of the Netherlands, New Zealand, Nicaragua, Republic of Niger, Federal Republic of

83
Nigeria, Kingdom of Norway, Islamic Republic of Pakistan, Paraguay, Peru, Philippines, Poland, Potuguese Republic,
State of Qatar, Romania, Rwandese Republic, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines,
Senegal, Sierra Leone, Singapore, Slovak Republic, South Africa, Kingdom of Spain, Democratic Socialist Republic of
Sri Lanka, Republic of Surinam, Kingdom of Swaziland, Kingdom of Sweden, Swiss Confederation, United Republic
of Tanzania, Kingdom of Thailand, Togolese Republic, Republic of Trinidad and Tobago, Tunisia, Turkey, Uganda,
United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America, Eastern
Republic of Uruguay, Venezuela, Republic of Zaire, Republic of Zambia, Republic of Zimbabwe; see pp. 6-25, Vol. 1,
Uruguay Round of Multilateral Trade Negotiations.

3 11 August 1994

The Honorable Members

Senate

Through Senate President Edgardo Angara

Manila

Ladies and Gentlemen:

I have the honor to forward herewith an authenticated copy of the Uruguay Round Final Act signed by Department of
Trade and Industry Secretary Rizalino S. Navarro for the Philippines on 15 April 1994 in Marrakesh, Morocco.

The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen the interrelationship between
trade and economic policies affecting growth and development.

The Final Act will improve Philippine access to foreign markets, especially its major trading partners through the
reduction of tariffs on its exports particularly agricultural and industrial products. These concessions may be availed of
by the Philippines, only if it is a member of the World Trade Organization. By GATT estimates, the Philippines can
acquire additional export from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of the normal
increase in exports that the Philippines may experience.

The Final Act will also open up new opportunities for the services sector in such areas as the movement of personnel,
(e.g. professional services and construction services), cross-border supply (e.g. computer-related services),
consumption abroad (e.g. tourism, convention services, etc.) and commercial presence.

The clarified and improved rules and disciplines on anti-dumping and countervailing measures will also benefit
Philippine exporters by reducing the costs ad uncertainty associated with exporting while at the same time providing
means for domestic industries to safeguard themselves against unfair imports.

Likewise, the provision of adequate protection for intellectual property rights is expected to attract more investments
into the country and to make it less vulnerable to unilateral actions by its trading partners (e.g. Sec. 301 of the United
States' Omnibus Trade Law).

In view of the foregoing, the Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution.

A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is enclosed.

Very truly yours,

(SGD.) FIDEL V. RAMOS

4 11 August 1994

The Honorable Members

Senate

Through Senate President Edgardo Angara

84
Manila

Ladies and Gentlemen:

I have the honor to forward herewith an authenticated copy of the Uruguay Round Final Act signed by Department of
Trade and Industry Secretary Rizalino S. Navarro for the Philippines on 13 April 1994 in Marrakech (sic), Morocco.

Members of the trade negotiations committee, which included the Philippines, agreed that the Agreement Establishing
the World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on Commitments in
Financial Services embody the results of their negotiations and form an integral part of the Uruguay Round Final Act.

By signing the Uruguay Round Final Act, the Philippines, through Secretary Navarro, agreed:

(a) To submit the Agreement Establishing the World Trade Organization to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution; and

(b) To adopt the Ministerial Declarations and Decisions.

The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen the interrelationship between
trade and economic policies affecting growth and development.

The Final Act will improve Philippine access to foreign markets, especially its major trading partners through the
reduction of tariffs on its exports particularly agricultural and industrial products. These concessions may be availed of
by the Philippines, only if it is a member of the World Trade Organization. By GATT estimates, the Philippines can
acquire additional export revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of the
normal increase in the exports that the Philippines may experience.

The Final Act will also open up new opportunities for the services sector in such areas as the movement of personnel,
(e.g., professional services and construction services), cross-border supply (e.g., computer-related services),
consumption abroad (e.g., tourism, convention services, etc.) and commercial presence.

The clarified and improved rules ad disciplines on anti-dumping and countervailing measures will also benefit
Philippine exporters by reducing the costs and uncertainty associated with exporting while at the same time providing a
means for domestic industries to safeguard themselves against unfair imports.

Likewise, the provision of adequate protection for intellectual property rights is expected to attract more investments
into the country and to make it a less vulnerable to unilateral actions by its trading partners (e.g., Sec. 301 of the United
States Omnibus Trade Law).

In view of the foregoing, the Uruguay Round Final Act, the Agreement Establishing the World Trade Organization, the
Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial Services, as embodied in
the Uruguay Round Final Act and forming and integral part thereof are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.

A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is enclosed.

Very truly yours,

(SGD.) FIDEL V. RAMOS

5 December 9, 1994

HON. EDGARDO J. ANGARA

Senate President

Senate Manila

85
Dear Senate President Angara:

Pursuant to the provisions of Sec. 26 (2) Article VI of the Constitution, I hereby certify to the necessity of the
immediate adoption of P.S. 1083 entitled:

CONCURRING IN THE RATIFICATION OF THE AGREEMENT ESTABLISHING THE WORLD TRADE

ORGANIZATION

to meet a public emergency consisting of the need for immediate membership in the WTO in order to assure the
benefits to the Philippine economy arising from such membership.

Very truly yours,

(SGD.) FIDEL V. RAMOS

6 Attached as Annex A, Petition; rollo, p. 52. P.S. 1083 is the forerunner of assailed Senate Resolution No. 97.
It was prepared by the Committee of the Whole on the General Agreement on Tariffs and Trade chaired by Sen. Blas F.
Ople and co-chaired by Sen. Gloria Macapagal-Arroyo; see Annex C, Compliance of petitioners dated January 28,
1997.

7 The Philippines is thus considered an original or founding member of WTO, which as of July 26, 1996 had
123 members as follows: Antigua and Barbuda, Argentina, Australia, Austria, Bahrain, Bangladesh, Barbados,
Belguim, Belize, Benin, Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Canada,
Central African Republic, Chili, Colombia, Costa Rica, Cote d'Ivoire, Cuba, Cyprus, Czech Republic, Denmark,
Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, European Community, Fiji, Finland, France,
Gabon, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau, Guyana, Haiti, Honduras, Honkong,
Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan, Kenya, Korea, Kuwait, Lesotho,
Liechtenstein, Luxembourg, Macau, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius,
Mexico, Morocco, Mozambique, Myanmar, Namibia, Netherlands — for the Kingdom in Europe and for the
Netherlands Antilles, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Papua New Guinea, Paraguay, Peru,
Philippines, Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent & the
Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands, South Africa, Spain, Sri
Lanka, Surinam, Swaziland, Sweden, Switzerland, Tanzania, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey,
Uganda, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Zambia, and Zimbabwe. See
Annex A, Bautista Paper, infra.

8 Page 6; rollo p. 261.

9 In compliance, Ambassador Bautista submitted to the Court on August 12, 1996, a Memorandum (the
"Bautista Paper") consisting of 56 pages excluding annexes. This is the same document mentioned in footnote no. 1.

10 Memorandum for Respondents, p. 13; rollo, p. 268.

11 Cf . Kilosbayan Incorporated vs. Morato, 246 SCRA 540, July 17, 1995 for a discussion on locus standi. See
also the Concurring Opinion of Mr. Justice Vicente V. Mendoza in Tatad vs. Garcia, Jr., 243 SCRA 473, April 6, 1995,
as well as Kilusang Mayo Uno Labor Center vs. Garcia, Jr., 239 SCRA 386, 414, December 23, 1994.

12 Aquino, Jr. vs. Ponce Enrile, 59 SCRA 183, 196, September 17, 1974, cited in Bondoc vs. Pineda, 201 SCRA
792, 795, September 26, 1991.

13 Guingona, Jr. vs. Gonzales, 219 SCRA 326, 337, March 1, 1993.

14 See Tañada and Macapagal vs. Cuenco, et al., 103 Phil. 1051 for a discussion on the scope of "political
question."

15 Section 1, Article VIII, (par. 2).

16 In a privilege speech on May 17, 1993, entitled "Supreme Court — Potential Tyrant?" Senator Arturo
Tolentino concedes that this new provision gives the Supreme Court a duty "to intrude into the jurisdiction of the
Congress or the President."

17 I Record of the Constitutional Commission 436.

86
18 Cf . Daza vs. Singson, 180 SCRA 496, December 21, 1989.

19 Memorandum for Petitioners, pp. 14-16; rollo, pp. 204-206.

20 Par. 4, Article XVI, WTO Agreement, Uruguay Round of Multilateral Trade Negotiations, Vol. 1. p. 146.

21 Also entitled "Declaration of Principles." The nomenclature in the 1973 Charter is identical with that in the
1987's.

22 Philippine Political Law, 1962 Ed., p. 116.

23 Bernas, The Constitution of the Philippines: A Commentary, Vol. II, 1988 Ed., p. 2. In the very recent case of
Manila Prince Hotel v. GSIS, G.R. No. 122156, February 3, 1997, p. 8, it was held that "A provision which lays down a
general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing."

24 246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of Finance, G.R. No. 115455 and
consolidated cases, August 25, 1995.

25 197 SCRA 52, 68, May 14, 1991.

26 224 SCRA 792, 817, July 30, 1993.

27 Sec. 10, Article XII.

28 Sec. 12, Article XII.

29 Sec. 19, Art. II.

30 Sec. 13, Art. XII.

31 G.R. No. 122156, February 3, 1997, pp. 13-14.

32 Sec. 1, Art. XII.

33 Bautista Paper, p. 19.

34 Preamble, WTO Agreement p. 137, Vol. 1, Uruguay Round of Multilateral Trade Negotiations. Emphasis
supplied.

35 Sec. 19, Article II, Constitution.

36 III Records of the Constitutional Commission 252.

37 Sec. 13, Article XII, Constitution.

38 Justice Isagani A. Cruz, Philippine Political Law, 1995 Ed., p. 13, quoting his own article entitled, "A
Quintessential Constitution" earlier published in the San Beda Law Journal, April 1972; emphasis supplied.

39 Par. 4, Article XVI (Miscellaneous Provisions), WTO Agreement, p. 146, Vol. 1, Uruguay Round of
Multilateral Trade Negotiations.

40 Memorandum for the Petitioners, p. 29; rollo, p. 219.

41 Sec. 24, Article VI, Constitution.

42 Subsection (2), Sec. 28, Article VI, Constitution.

43 Sec. 2, Article II, Constitution.

44 Cruz, Philippine Political Law, 1995 Ed., p. 55.

87
45 Salonga and Yap, op cit 305.

46 Salonga, op. cit., p. 287.

47 Quoted in Paras and Paras, Jr., International Law and World Politics, 1994 Ed., p. 178.

47-A Reagan vs. Commission of Internal Revenue, 30 SCRA 968, 973, December 27, 1969.

48 Trebilcock and Howse. The Regulation of International Trade, p. 14, London, 1995, cited on p. 55-56,
Bautista Paper.

49 Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.

50 Item 5, Sec. 5, Article VIII, Constitution.

51 Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.

52 Bautista Paper, p. 13.

53 See footnote 3 of the text of this letter.

54 Salonga and Yap, op cit., pp. 289-290.

55 The full text, without the signatures, of the Final Act is as follows:

Final Act Embodying the Results of the

Uruguay Round of Multilateral Trade Negotiations

1. Having met in order to conclude the Uruguay Round of Multilateral Trade Negotiations, representatives of
the governments and of the European Communities, members of the Trade Negotiations Committee, agree that the
Agreement Establishing the World Trade Organization (referred to in the Final Act as the "WTO Agreement"), the
Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial Services, as annexed
hereto, embody the results of their negotiations and form an integral part of this Final Act.

2. By signing to the present Final Act, the representatives agree.

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities
with a view to seeking approval of the Agreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

3. The representatives agree on the desirability of acceptance of the WTO Agreement by all participants in the
Uruguay Round of Multilateral Trade Negotiations (hereinafter referred to as "participants") with a view to its entry
into force by 1 January 1995, or as early as possible thereafter. Not later than late 1994, Ministers will meet, in
accordance with the final paragraph of the Punta del Este Ministerial Declarations, to decide on the international
implementation of the results, including the timing of their entry into force.

4. the representatives agree that the WTO Agreement shall be open for acceptance as a whole, by signature or
otherwise, by all participants pursuant to Article XIV thereof. The acceptance and entry into force of a Plurilateral
Trade Agreement included in Annex 4 of the WTO Agreement shall be governed by the provisions of that Plurilateral
Trade Agreement.

5. Before accepting the WTO Agreement, participants which are not contracting parties to the General
Agreement on Tariffs and Trade must first have concluded negotiations for their accession to the General Agreement
and become contracting parties thereto. For participants which are not contracting parties to the general Agreement as
of the date of the Final Act, the Schedules are not definitive and shall be subsequently completed for the purpose of
their accession to the General Agreement and acceptance of the WTO Agreement.

6. This Final Act and the texts annexed hereto shall be deposited with the Director-General to the
CONTRACTING PARTIES to the General Agreement on Tariffs and Trade who shall promptly furnish to each
participant a certified copy thereof.

88
DONE at Marrakesh this fifteenth day of April one thousand nine hundred and ninety-four, in a single copy, in the
English, French and Spanish languages, each text being authentic.

56 Bautista Paper, p. 16.

57 Baustista Paper, p. 16.

58 Uruguay Round of Multilateral Trade Negotiations, Vol. I, pp. 137-138.

59 See footnote 3 for complete text.

60 Taken from pp. 63-85, "Respondent" Memorandum.

61 Zarate vs. Olegario, G.R. No. 90655, October 7, 1996.

62 San Sebastian College vs. Court of Appeals, 197 SCRA 138, 144, May 15, 1991; Commissioner of Internal
Revenue vs. Court of Tax Appeals, 195 SCRA 444, 458 March 20, 1991; Simon vs. Civil Service Commission, 215
SCRA 410, November 5, 1992; Bustamante vs. Commissioner on Audit, 216 SCRA 134, 136, November 27, 1992.

63 Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990.

64 Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate."

65 Reader's Digest, December 1996 issue, p. 28.

89
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 133250 July 9, 2002

FRANCISCO I. CHAVEZ, petitioner,

vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT CORPORATION, respondents.

CARPIO, J.:

This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a temporary restraining
order. The petition seeks to compel the Public Estates Authority ("PEA" for brevity) to disclose all facts on PEA's then
on-going renegotiations with Amari Coastal Bay and Development Corporation ("AMARI" for brevity) to reclaim
portions of Manila Bay. The petition further seeks to enjoin PEA from signing a new agreement with AMARI
involving such reclamation.

The Facts

On November 20, 1973, the government, through the Commissioner of Public Highways, signed a contract with the
Construction and Development Corporation of the Philippines ("CDCP" for brevity) to reclaim certain foreshore and
offshore areas of Manila Bay. The contract also included the construction of Phases I and II of the Manila-Cavite
Coastal Road. CDCP obligated itself to carry out all the works in consideration of fifty percent of the total reclaimed
land.

On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084 creating PEA. PD No.
1084 tasked PEA "to reclaim land, including foreshore and submerged areas," and "to develop, improve, acquire, x x x
lease and sell any and all kinds of lands."1 On the same date, then President Marcos issued Presidential Decree No.
1085 transferring to PEA the "lands reclaimed in the foreshore and offshore of the Manila Bay"2 under the Manila-
Cavite Coastal Road and Reclamation Project (MCCRRP).

On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its contract with CDCP,
so that "[A]ll future works in MCCRRP x x x shall be funded and owned by PEA." Accordingly, PEA and CDCP
executed a Memorandum of Agreement dated December 29, 1981, which stated:

"(i) CDCP shall undertake all reclamation, construction, and such other works in the MCCRRP as may be agreed upon
by the parties, to be paid according to progress of works on a unit price/lump sum basis for items of work to be agreed
upon, subject to price escalation, retention and other terms and conditions provided for in Presidential Decree No.
1594. All the financing required for such works shall be provided by PEA.

xxx

(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and transfer in favor of PEA, all of
the rights, title, interest and participation of CDCP in and to all the areas of land reclaimed by CDCP in the MCCRRP
as of December 30, 1981 which have not yet been sold, transferred or otherwise disposed of by CDCP as of said date,
which areas consist of approximately Ninety-Nine Thousand Four Hundred Seventy Three (99,473) square meters in
the Financial Center Area covered by land pledge No. 5 and approximately Three Million Three Hundred Eighty Two
Thousand Eight Hundred Eighty Eight (3,382,888) square meters of reclaimed areas at varying elevations above Mean
Low Water Level located outside the Financial Center Area and the First Neighborhood Unit."3

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting and transferring to
PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP)
containing a total area of one million nine hundred fifteen thousand eight hundred ninety four (1,915,894) square
meters." Subsequently, on April 9, 1988, the Register of Deeds of the Municipality of Parañaque issued Transfer
Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA, covering the three reclaimed islands known as the
"Freedom Islands" located at the southern portion of the Manila-Cavite Coastal Road, Parañaque City. The Freedom
Islands have a total land area of One Million Five Hundred Seventy Eight Thousand Four Hundred and Forty One
(1,578,441) square meters or 157.841 hectares.

90
On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for brevity) with AMARI, a private
corporation, to develop the Freedom Islands. The JVA also required the reclamation of an additional 250 hectares of
submerged areas surrounding these islands to complete the configuration in the Master Development Plan of the
Southern Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA through negotiation without public
bidding.4 On April 28, 1995, the Board of Directors of PEA, in its Resolution No. 1245, confirmed the JVA.5 On June
8, 1995, then President Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved the JVA.6

On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the Senate and
denounced the JVA as the "grandmother of all scams." As a result, the Senate Committee on Government Corporations
and Public Enterprises, and the Committee on Accountability of Public Officers and Investigations, conducted a joint
investigation. The Senate Committees reported the results of their investigation in Senate Committee Report No. 560
dated September 16, 1997.7 Among the conclusions of their report are: (1) the reclaimed lands PEA seeks to transfer to
AMARI under the JVA are lands of the public domain which the government has not classified as alienable lands and
therefore PEA cannot alienate these lands; (2) the certificates of title covering the Freedom Islands are thus void, and
(3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No. 365 creating a
Legal Task Force to conduct a study on the legality of the JVA in view of Senate Committee Report No. 560. The
members of the Legal Task Force were the Secretary of Justice,8 the Chief Presidential Legal Counsel,9 and the
Government Corporate Counsel.10 The Legal Task Force upheld the legality of the JVA, contrary to the conclusions
reached by the Senate Committees.11

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were on-going
renegotiations between PEA and AMARI under an order issued by then President Fidel V. Ramos. According to these
reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired Navy Officer Sergio Cruz composed the
negotiating panel of PEA.

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with Application for the
Issuance of a Temporary Restraining Order and Preliminary Injunction docketed as G.R. No. 132994 seeking to nullify
the JVA. The Court dismissed the petition "for unwarranted disregard of judicial hierarchy, without prejudice to the
refiling of the case before the proper court."12

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the instant Petition for
Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and Temporary Restraining Order.
Petitioner contends the government stands to lose billions of pesos in the sale by PEA of the reclaimed lands to
AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the JVA, invoking Section 28,
Article II, and Section 7, Article III, of the 1987 Constitution on the right of the people to information on matters of
public concern. Petitioner assails the sale to AMARI of lands of the public domain as a blatant violation of Section 3,
Article XII of the 1987 Constitution prohibiting the sale of alienable lands of the public domain to private corporations.
Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos in properties of the State that are of public
dominion.

After several motions for extension of time,13 PEA and AMARI filed their Comments on October 19, 1998 and June
25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an Omnibus Motion: (a) to require PEA to
submit the terms of the renegotiated PEA-AMARI contract; (b) for issuance of a temporary restraining order; and (c) to
set the case for hearing on oral argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated May 26,
1999, which the Court denied in a Resolution dated June 22, 1999.

In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the parties to file their
respective memoranda.

On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement ("Amended JVA," for brevity).
On May 28, 1999, the Office of the President under the administration of then President Joseph E. Estrada approved the
Amended JVA.

Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on "constitutional
and statutory grounds the renegotiated contract be declared null and void."14

The Issues

The issues raised by petitioner, PEA15 and AMARI16 are as follows:

91
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT AND ACADEMIC
BECAUSE OF SUBSEQUENT EVENTS;

II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE PRINCIPLE
GOVERNING THE HIERARCHY OF COURTS;

III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF ADMINISTRATIVE

REMEDIES;

IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;

V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL INFORMATION

ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT;

VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT FOR THE
TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE RECLAIMED, VIOLATE THE
1987 CONSTITUTION; AND

VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF WHETHER THE
AMENDED JOINT VENTURE AGREEMENT IS GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT.

The Court's Ruling

First issue: whether the principal reliefs prayed for in the petition are moot and academic because of subsequent events.

The petition prays that PEA publicly disclose the "terms and conditions of the on-going negotiations for a new
agreement." The petition also prays that the Court enjoin PEA from "privately entering into, perfecting and/or
executing any new agreement with AMARI."

PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner on June 21, 1999
a copy of the signed Amended JVA containing the terms and conditions agreed upon in the renegotiations. Thus, PEA
has satisfied petitioner's prayer for a public disclosure of the renegotiations. Likewise, petitioner's prayer to enjoin the
signing of the Amended JVA is now moot because PEA and AMARI have already signed the Amended JVA on March
30, 1999. Moreover, the Office of the President has approved the Amended JVA on May 28, 1999.

Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking the signing and
approval of the Amended JVA before the Court could act on the issue. Presidential approval does not resolve the
constitutional issue or remove it from the ambit of judicial review.

We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President cannot operate to
moot the petition and divest the Court of its jurisdiction. PEA and AMARI have still to implement the Amended JVA.
The prayer to enjoin the signing of the Amended JVA on constitutional grounds necessarily includes preventing its
implementation if in the meantime PEA and AMARI have signed one in violation of the Constitution. Petitioner's
principal basis in assailing the renegotiation of the JVA is its violation of Section 3, Article XII of the Constitution,
which prohibits the government from alienating lands of the public domain to private corporations. If the Amended
JVA indeed violates the Constitution, it is the duty of the Court to enjoin its implementation, and if already
implemented, to annul the effects of such unconstitutional contract.

The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title and ownership to 367.5
hectares of reclaimed lands and submerged areas of Manila Bay to a single private corporation. It now becomes more
compelling for the Court to resolve the issue to insure the government itself does not violate a provision of the
Constitution intended to safeguard the national patrimony. Supervening events, whether intended or accidental, cannot
prevent the Court from rendering a decision if there is a grave violation of the Constitution. In the instant case, if the
Amended JVA runs counter to the Constitution, the Court can still prevent the transfer of title and ownership of
alienable lands of the public domain in the name of AMARI. Even in cases where supervening events had made the
cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar, and the public.17

Also, the instant petition is a case of first impression. All previous decisions of the Court involving Section 3, Article
XII of the 1987 Constitution, or its counterpart provision in the 1973 Constitution,18 covered agricultural lands sold to
private corporations which acquired the lands from private parties. The transferors of the private corporations claimed
or could claim the right to judicial confirmation of their imperfect titles19 under Title II of Commonwealth Act. 141

92
("CA No. 141" for brevity). In the instant case, AMARI seeks to acquire from PEA, a public corporation, reclaimed
lands and submerged areas for non-agricultural purposes by purchase under PD No. 1084 (charter of PEA) and Title III
of CA No. 141. Certain undertakings by AMARI under the Amended JVA constitute the consideration for the
purchase. Neither AMARI nor PEA can claim judicial confirmation of their titles because the lands covered by the
Amended JVA are newly reclaimed or still to be reclaimed. Judicial confirmation of imperfect title requires open,
continuous, exclusive and notorious occupation of agricultural lands of the public domain for at least thirty years since
June 12, 1945 or earlier. Besides, the deadline for filing applications for judicial confirmation of imperfect title expired
on December 31, 1987.20

Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because of the possible
transfer at any time by PEA to AMARI of title and ownership to portions of the reclaimed lands. Under the Amended
JVA, PEA is obligated to transfer to AMARI the latter's seventy percent proportionate share in the reclaimed areas as
the reclamation progresses. The Amended JVA even allows AMARI to mortgage at any time the entire reclaimed area
to raise financing for the reclamation project.21

Second issue: whether the petition merits dismissal for failing to observe the principle governing the hierarchy of
courts.

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The
principle of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of facts, the
Court cannot entertain cases involving factual issues. The instant case, however, raises constitutional issues of
transcendental importance to the public.22 The Court can resolve this case without determining any factual issue
related to the case. Also, the instant case is a petition for mandamus which falls under the original jurisdiction of the
Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant
case.

Third issue: whether the petition merits dismissal for non-exhaustion of administrative remedies.

PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain information
without first asking PEA the needed information. PEA claims petitioner's direct resort to the Court violates the
principle of exhaustion of administrative remedies. It also violates the rule that mandamus may issue only if there is no
other plain, speedy and adequate remedy in the ordinary course of law.

PEA distinguishes the instant case from Tañada v. Tuvera23 where the Court granted the petition for mandamus even if
the petitioners there did not initially demand from the Office of the President the publication of the presidential decrees.
PEA points out that in Tañada, the Executive Department had an affirmative statutory duty under Article 2 of the Civil
Code24 and Section 1 of Commonwealth Act No. 63825 to publish the presidential decrees. There was, therefore, no
need for the petitioners in Tañada to make an initial demand from the Office of the President. In the instant case, PEA
claims it has no affirmative statutory duty to disclose publicly information about its renegotiation of the JVA. Thus,
PEA asserts that the Court must apply the principle of exhaustion of administrative remedies to the instant case in view
of the failure of petitioner here to demand initially from PEA the needed information.

The original JVA sought to dispose to AMARI public lands held by PEA, a government corporation. Under Section 79
of the Government Auditing Code,26 the disposition of government lands to private parties requires public bidding.
PEA was under a positive legal duty to disclose to the public the terms and conditions for the sale of its lands. The law
obligated PEA to make this public disclosure even without demand from petitioner or from anyone. PEA failed to make
this public disclosure because the original JVA, like the Amended JVA, was the result of a negotiated contract, not of a
public bidding. Considering that PEA had an affirmative statutory duty to make the public disclosure, and was even in
breach of this legal duty, petitioner had the right to seek direct judicial intervention.

Moreover, and this alone is determinative of this issue, the principle of exhaustion of administrative remedies does not
apply when the issue involved is a purely legal or constitutional question.27 The principal issue in the instant case is
the capacity of AMARI to acquire lands held by PEA in view of the constitutional ban prohibiting the alienation of
lands of the public domain to private corporations. We rule that the principle of exhaustion of administrative remedies
does not apply in the instant case.

Fourth issue: whether petitioner has locus standi to bring this suit

PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his constitutional right to
information without a showing that PEA refused to perform an affirmative duty imposed on PEA by the Constitution.
PEA also claims that petitioner has not shown that he will suffer any concrete injury because of the signing or

93
implementation of the Amended JVA. Thus, there is no actual controversy requiring the exercise of the power of
judicial review.

The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to comply with its
constitutional duties. There are two constitutional issues involved here. First is the right of citizens to information on
matters of public concern. Second is the application of a constitutional provision intended to insure the equitable
distribution of alienable lands of the public domain among Filipino citizens. The thrust of the first issue is to compel
PEA to disclose publicly information on the sale of government lands worth billions of pesos, information which the
Constitution and statutory law mandate PEA to disclose. The thrust of the second issue is to prevent PEA from
alienating hundreds of hectares of alienable lands of the public domain in violation of the Constitution, compelling
PEA to comply with a constitutional duty to the nation.

Moreover, the petition raises matters of transcendental importance to the public. In Chavez v. PCGG,28 the Court
upheld the right of a citizen to bring a taxpayer's suit on matters of transcendental importance to the public, thus -

"Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue of
'transcendental importance to the public.' He asserts that ordinary taxpayers have a right to initiate and prosecute
actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are of
'paramount public interest,' and if they 'immediately affect the social, economic and moral well being of the people.'

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves
the assertion of a public right, such as in this case. He invokes several decisions of this Court which have set aside the
procedural matter of locus standi, when the subject of the case involved public interest.

xxx

In Tañada v. Tuvera, the Court asserted that when the issue concerns a public right and the object of mandamus is to
obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is
sufficient that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has
any legal or special interest in the result of the action. In the aforesaid case, the petitioners sought to enforce their right
to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution,
in connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or
otherwise effectively promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they
sought to be enforced 'is a public right recognized by no less than the fundamental law of the land.'

Legaspi v. Civil Service Commission, while reiterating Tañada, further declared that 'when a mandamus proceeding
involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner
is a citizen and, therefore, part of the general 'public' which possesses the right.'

Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been involved under the
questioned contract for the development, management and operation of the Manila International Container Terminal,
'public interest [was] definitely involved considering the important role [of the subject contract] . . . in the economic
development of the country and the magnitude of the financial consideration involved.' We concluded that, as a
consequence, the disclosure provision in the Constitution would constitute sufficient authority for upholding the
petitioner's standing.

Similarly, the instant petition is anchored on the right of the people to information and access to official records,
documents and papers — a right guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a former
solicitor general, is a Filipino citizen. Because of the satisfaction of the two basic requisites laid down by decisional
law to sustain petitioner's legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we
rule that the petition at bar should be allowed."

We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional rights - to
information and to the equitable diffusion of natural resources - matters of transcendental public importance, the
petitioner has the requisite locus standi.

Fifth issue: whether the constitutional right to information includes official information on on-going negotiations before
a final agreement.

Section 7, Article III of the Constitution explains the people's right to information on matters of public concern in this
manner:

94
"Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law." (Emphasis supplied)

The State policy of full transparency in all transactions involving public interest reinforces the people's right to
information on matters of public concern. This State policy is expressed in Section 28, Article II of the Constitution,
thus:

"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." (Emphasis supplied)

These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of the
government, as well as provide the people sufficient information to exercise effectively other constitutional rights.
These twin provisions are essential to the exercise of freedom of expression. If the government does not disclose its
official acts, transactions and decisions to citizens, whatever citizens say, even if expressed without any restraint, will
be speculative and amount to nothing. These twin provisions are also essential to hold public officials "at all times x x x
accountable to the people,"29 for unless citizens have the proper information, they cannot hold public officials
accountable for anything. Armed with the right information, citizens can participate in public discussions leading to the
formulation of government policies and their effective implementation. An informed citizenry is essential to the
existence and proper functioning of any democracy. As explained by the Court in Valmonte v. Belmonte, Jr.30 –

"An essential element of these freedoms is to keep open a continuing dialogue or process of communication between
the government and the people. It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue
can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have access to information relating thereto can such
bear fruit."

PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going negotiations the right to information is limited to
"definite propositions of the government." PEA maintains the right does not include access to "intra-agency or inter-
agency recommendations or communications during the stage when common assertions are still in the process of being
formulated or are in the 'exploratory stage'."

Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before the closing of the
transaction. To support its contention, AMARI cites the following discussion in the 1986 Constitutional Commission:

"Mr. Suarez. And when we say 'transactions' which should be distinguished from contracts, agreements, or treaties or
whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the
contract itself?

Mr. Ople: The 'transactions' used here, I suppose is generic and therefore, it can cover both steps leading to a contract
and already a consummated contract, Mr. Presiding Officer.

Mr. Suarez: This contemplates inclusion of negotiations leading to the consummation of the transaction.

Mr. Ople: Yes, subject only to reasonable safeguards on the national interest.

Mr. Suarez: Thank you."32 (Emphasis supplied)

AMARI argues there must first be a consummated contract before petitioner can invoke the right. Requiring
government officials to reveal their deliberations at the pre-decisional stage will degrade the quality of decision-making
in government agencies. Government officials will hesitate to express their real sentiments during deliberations if there
is immediate public dissemination of their discussions, putting them under all kinds of pressure before they decide.

We must first distinguish between information the law on public bidding requires PEA to disclose publicly, and
information the constitutional right to information requires PEA to release to the public. Before the consummation of
the contract, PEA must, on its own and without demand from anyone, disclose to the public matters relating to the
disposition of its property. These include the size, location, technical description and nature of the property being
disposed of, the terms and conditions of the disposition, the parties qualified to bid, the minimum price and similar
information. PEA must prepare all these data and disclose them to the public at the start of the disposition process, long

95
before the consummation of the contract, because the Government Auditing Code requires public bidding. If PEA fails
to make this disclosure, any citizen can demand from PEA this information at any time during the bidding process.

Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review
committee is not immediately accessible under the right to information. While the evaluation or review is still on-
going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee
makes its official recommendation, there arises a "definite proposition" on the part of the government. From this
moment, the public's right to information attaches, and any citizen can access all the non-proprietary information
leading to such definite proposition. In Chavez v. PCGG,33 the Court ruled as follows:

"Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its
officers, as well as other government representatives, to disclose sufficient public information on any proposed
settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information,
though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency
recommendations or communications during the stage when common assertions are still in the process of being
formulated or are in the "exploratory" stage. There is need, of course, to observe the same restrictions on disclosure of
information in general, as discussed earlier – such as on matters involving national security, diplomatic or foreign
relations, intelligence and other classified information." (Emphasis supplied)

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission understood that the right
to information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a
consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose
its defects.1âwphi1.nêt

Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly
disadvantageous to the government or even illegal, becomes a fait accompli. This negates the State policy of full
transparency on matters of public concern, a situation which the framers of the Constitution could not have intended.
Such a requirement will prevent the citizenry from participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an emasculation of a
constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its transactions involving
public interest."

The right covers three categories of information which are "matters of public concern," namely: (1) official records; (2)
documents and papers pertaining to official acts, transactions and decisions; and (3) government research data used in
formulating policies. The first category refers to any document that is part of the public records in the custody of
government agencies or officials. The second category refers to documents and papers recording, evidencing,
establishing, confirming, supporting, justifying or explaining official acts, transactions or decisions of government
agencies or officials. The third category refers to research data, whether raw, collated or processed, owned by the
government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the JVA includes evaluation reports,
recommendations, legal and expert opinions, minutes of meetings, terms of reference and other documents attached to
such reports or minutes, all relating to the JVA. However, the right to information does not compel PEA to prepare
lists, abstracts, summaries and the like relating to the renegotiation of the JVA.34 The right only affords access to
records, documents and papers, which means the opportunity to inspect and copy them. One who exercises the right
must copy the records, documents and papers at his expense. The exercise of the right is also subject to reasonable
regulations to protect the integrity of the public records and to minimize disruption to government operations, like rules
specifying when and how to conduct the inspection and copying.35

The right to information, however, does not extend to matters recognized as privileged information under the separation
of powers.36 The right does not also apply to information on military and diplomatic secrets, information affecting
national security, and information on investigations of crimes by law enforcement agencies before the prosecution of
the accused, which courts have long recognized as confidential.37 The right may also be subject to other limitations
that Congress may impose by law.

There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the
separation of powers. The information does not cover Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings which, like internal deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress,38 are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free
from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-

96
making of those tasked to exercise Presidential, Legislative and Judicial power.39 This is not the situation in the instant
case.

We rule, therefore, that the constitutional right to information includes official information on on-going negotiations
before a final contract. The information, however, must constitute definite propositions by the government and should
not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters
affecting national security and public order.40 Congress has also prescribed other limitations on the right to
information in several legislations.41

Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI of lands, reclaimed or to be
reclaimed, violate the Constitution.

The Regalian Doctrine

The ownership of lands reclaimed from foreshore and submerged areas is rooted in the Regalian doctrine which holds
that the State owns all lands and waters of the public domain. Upon the Spanish conquest of the Philippines, ownership
of all "lands, territories and possessions" in the Philippines passed to the Spanish Crown.42 The King, as the sovereign
ruler and representative of the people, acquired and owned all lands and territories in the Philippines except those he
disposed of by grant or sale to private individuals.

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the State, in lieu of the
King, as the owner of all lands and waters of the public domain. The Regalian doctrine is the foundation of the time-
honored principle of land ownership that "all lands that were not acquired from the Government, either by purchase or
by grant, belong to the public domain."43 Article 339 of the Civil Code of 1889, which is now Article 420 of the Civil
Code of 1950, incorporated the Regalian doctrine.

Ownership and Disposition of Reclaimed Lands

The Spanish Law of Waters of 1866 was the first statutory law governing the ownership and disposition of reclaimed
lands in the Philippines. On May 18, 1907, the Philippine Commission enacted Act No. 1654 which provided for the
lease, but not the sale, of reclaimed lands of the government to corporations and individuals. Later, on November 29,
1919, the Philippine Legislature approved Act No. 2874, the Public Land Act, which authorized the lease, but not the
sale, of reclaimed lands of the government to corporations and individuals. On November 7, 1936, the National
Assembly passed Commonwealth Act No. 141, also known as the Public Land Act, which authorized the lease, but not
the sale, of reclaimed lands of the government to corporations and individuals. CA No. 141 continues to this day as the
general law governing the classification and disposition of lands of the public domain.

The Spanish Law of Waters of 1866 and the Civil Code of 1889

Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters within the maritime zone of the
Spanish territory belonged to the public domain for public use.44 The Spanish Law of Waters of 1866 allowed the
reclamation of the sea under Article 5, which provided as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by the provinces,
pueblos or private persons, with proper permission, shall become the property of the party constructing such works,
unless otherwise provided by the terms of the grant of authority."

Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party undertaking the reclamation,
provided the government issued the necessary permit and did not reserve ownership of the reclaimed land to the State.

Article 339 of the Civil Code of 1889 defined property of public dominion as follows:

"Art. 339. Property of public dominion is –

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State,
riverbanks, shores, roadsteads, and that of a similar character;

2. That belonging exclusively to the State which, without being of general public use, is employed in some public
service, or in the development of the national wealth, such as walls, fortresses, and other works for the defense of the
territory, and mines, until granted to private individuals."

97
Property devoted to public use referred to property open for use by the public. In contrast, property devoted to public
service referred to property used for some specific public service and open only to those authorized to use the property.

Property of public dominion referred not only to property devoted to public use, but also to property not so used but
employed to develop the national wealth. This class of property constituted property of public dominion although
employed for some economic or commercial activity to increase the national wealth.

Article 341 of the Civil Code of 1889 governed the re-classification of property of public dominion into private
property, to wit:

"Art. 341. Property of public dominion, when no longer devoted to public use or to the defense of the territory, shall
become a part of the private property of the State."

This provision, however, was not self-executing. The legislature, or the executive department pursuant to law, must
declare the property no longer needed for public use or territorial defense before the government could lease or alienate
the property to private parties.45

Act No. 1654 of the Philippine Commission

On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the lease of reclaimed and
foreshore lands. The salient provisions of this law were as follows:

"Section 1. The control and disposition of the foreshore as defined in existing law, and the title to all Government or
public lands made or reclaimed by the Government by dredging or filling or otherwise throughout the Philippine
Islands, shall be retained by the Government without prejudice to vested rights and without prejudice to rights
conceded to the City of Manila in the Luneta Extension.

Section 2. (a) The Secretary of the Interior shall cause all Government or public lands made or reclaimed by the
Government by dredging or filling or otherwise to be divided into lots or blocks, with the necessary streets and
alleyways located thereon, and shall cause plats and plans of such surveys to be prepared and filed with the Bureau of
Lands.

(b) Upon completion of such plats and plans the Governor-General shall give notice to the public that such parts of the
lands so made or reclaimed as are not needed for public purposes will be leased for commercial and business purposes,
x x x.

xxx

(e) The leases above provided for shall be disposed of to the highest and best bidder therefore, subject to such
regulations and safeguards as the Governor-General may by executive order prescribe." (Emphasis supplied)

Act No. 1654 mandated that the government should retain title to all lands reclaimed by the government. The Act also
vested in the government control and disposition of foreshore lands. Private parties could lease lands reclaimed by the
government only if these lands were no longer needed for public purpose. Act No. 1654 mandated public bidding in the
lease of government reclaimed lands. Act No. 1654 made government reclaimed lands sui generis in that unlike other
public lands which the government could sell to private parties, these reclaimed lands were available only for lease to
private parties.

Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866. Act No. 1654 did not prohibit
private parties from reclaiming parts of the sea under Section 5 of the Spanish Law of Waters. Lands reclaimed from
the sea by private parties with government permission remained private lands.

Act No. 2874 of the Philippine Legislature

On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land Act.46 The salient
provisions of Act No. 2874, on reclaimed lands, were as follows:

"Sec. 6. The Governor-General, upon the recommendation of the Secretary of Agriculture and Natural Resources, shall
from time to time classify the lands of the public domain into –

(a) Alienable or disposable,

98
(b) Timber, and

(c) Mineral lands, x x x.

Sec. 7. For the purposes of the government and disposition of alienable or disposable public lands, the Governor-
General, upon recommendation by the Secretary of Agriculture and Natural Resources, shall from time to time declare
what lands are open to disposition or concession under this Act."

Sec. 8. Only those lands shall be declared open to disposition or concession which have been officially delimited or
classified x x x.

xxx

Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land, shall be classified as
suitable for residential purposes or for commercial, industrial, or other productive purposes other than agricultural
purposes, and shall be open to disposition or concession, shall be disposed of under the provisions of this chapter, and
not otherwise.

Sec. 56. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

x x x.

Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be disposed of to private parties by
lease only and not otherwise, as soon as the Governor-General, upon recommendation by the Secretary of Agriculture
and Natural Resources, shall declare that the same are not necessary for the public service and are open to disposition
under this chapter. The lands included in class (d) may be disposed of by sale or lease under the provisions of this Act."
(Emphasis supplied)

Section 6 of Act No. 2874 authorized the Governor-General to "classify lands of the public domain into x x x alienable
or disposable"47 lands. Section 7 of the Act empowered the Governor-General to "declare what lands are open to
disposition or concession." Section 8 of the Act limited alienable or disposable lands only to those lands which have
been "officially delimited and classified."

Section 56 of Act No. 2874 stated that lands "disposable under this title48 shall be classified" as government reclaimed,
foreshore and marshy lands, as well as other lands. All these lands, however, must be suitable for residential,
commercial, industrial or other productive non-agricultural purposes. These provisions vested upon the Governor-
General the power to classify inalienable lands of the public domain into disposable lands of the public domain. These
provisions also empowered the Governor-General to classify further such disposable lands of the public domain into
government reclaimed, foreshore or marshy lands of the public domain, as well as other non-agricultural lands.

Section 58 of Act No. 2874 categorically mandated that disposable lands of the public domain classified as government
reclaimed, foreshore and marshy lands "shall be disposed of to private parties by lease only and not otherwise." The
Governor-General, before allowing the lease of these lands to private parties, must formally declare that the lands were
"not necessary for the public service." Act No. 2874 reiterated the State policy to lease and not to sell government
reclaimed, foreshore and marshy lands of the public domain, a policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands remained sui generis, as the only alienable or disposable lands of
the public domain that the government could not sell to private parties.

The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy public lands for non-
agricultural purposes retain their inherent potential as areas for public service. This is the reason the government
prohibited the sale, and only allowed the lease, of these lands to private parties. The State always reserved these lands
for some future public service.

99
Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore and marshy lands into other
non-agricultural lands under Section 56 (d). Lands falling under Section 56 (d) were the only lands for non-agricultural
purposes the government could sell to private parties. Thus, under Act No. 2874, the government could not sell
government reclaimed, foreshore and marshy lands to private parties, unless the legislature passed a law allowing their
sale.49

Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to Section 5 of the Spanish Law
of Waters of 1866. Lands reclaimed from the sea by private parties with government permission remained private
lands.

Dispositions under the 1935 Constitution

On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino people. The 1935 Constitution,
in adopting the Regalian doctrine, declared in Section 1, Article XIII, that –

"Section 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy and other natural resources of the Philippines belong to the State, and
their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines or to
corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any
existing right, grant, lease, or concession at the time of the inauguration of the Government established under this
Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no license,
concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for
a period exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for irrigation,
water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may
be the measure and limit of the grant." (Emphasis supplied)

The 1935 Constitution barred the alienation of all natural resources except public agricultural lands, which were the
only natural resources the State could alienate. Thus, foreshore lands, considered part of the State's natural resources,
became inalienable by constitutional fiat, available only for lease for 25 years, renewable for another 25 years. The
government could alienate foreshore lands only after these lands were reclaimed and classified as alienable agricultural
lands of the public domain. Government reclaimed and marshy lands of the public domain, being neither timber nor
mineral lands, fell under the classification of public agricultural lands.50 However, government reclaimed and marshy
lands, although subject to classification as disposable public agricultural lands, could only be leased and not sold to
private parties because of Act No. 2874.

The prohibition on private parties from acquiring ownership of government reclaimed and marshy lands of the public
domain was only a statutory prohibition and the legislature could therefore remove such prohibition. The 1935
Constitution did not prohibit individuals and corporations from acquiring government reclaimed and marshy lands of
the public domain that were classified as agricultural lands under existing public land laws. Section 2, Article XIII of
the 1935 Constitution provided as follows:

"Section 2. No private corporation or association may acquire, lease, or hold public agricultural lands in excess of one
thousand and twenty four hectares, nor may any individual acquire such lands by purchase in excess of one hundred
and forty hectares, or by lease in excess of one thousand and twenty-four hectares, or by homestead in excess of
twenty-four hectares. Lands adapted to grazing, not exceeding two thousand hectares, may be leased to an individual,
private corporation, or association." (Emphasis supplied)

Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section 58 of Act No. 2874 to open for
sale to private parties government reclaimed and marshy lands of the public domain. On the contrary, the legislature
continued the long established State policy of retaining for the government title and ownership of government
reclaimed and marshy lands of the public domain.

Commonwealth Act No. 141 of the Philippine National Assembly

On November 7, 1936, the National Assembly approved Commonwealth Act No. 141, also known as the Public Land
Act, which compiled the then existing laws on lands of the public domain. CA No. 141, as amended, remains to this
day the existing general law governing the classification and disposition of lands of the public domain other than timber
and mineral lands.51

Section 6 of CA No. 141 empowers the President to classify lands of the public domain into "alienable or
disposable"52 lands of the public domain, which prior to such classification are inalienable and outside the commerce
of man. Section 7 of CA No. 141 authorizes the President to "declare what lands are open to disposition or concession."

100
Section 8 of CA No. 141 states that the government can declare open for disposition or concession only lands that are
"officially delimited and classified." Sections 6, 7 and 8 of CA No. 141 read as follows:

"Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and Commerce, shall from time to
time classify the lands of the public domain into –

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands,

and may at any time and in like manner transfer such lands from one class to another,53 for the purpose of their
administration and disposition.

Sec. 7. For the purposes of the administration and disposition of alienable or disposable public lands, the President,
upon recommendation by the Secretary of Agriculture and Commerce, shall from time to time declare what lands are
open to disposition or concession under this Act.

Sec. 8. Only those lands shall be declared open to disposition or concession which have been officially delimited and
classified and, when practicable, surveyed, and which have not been reserved for public or quasi-public uses, nor
appropriated by the Government, nor in any manner become private property, nor those on which a private right
authorized and recognized by this Act or any other valid law may be claimed, or which, having been reserved or
appropriated, have ceased to be so. x x x."

Thus, before the government could alienate or dispose of lands of the public domain, the President must first officially
classify these lands as alienable or disposable, and then declare them open to disposition or concession. There must be
no law reserving these lands for public or quasi-public uses.

The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy lands of the public domain, are
as follows:

"Sec. 58. Any tract of land of the public domain which, being neither timber nor mineral land, is intended to be used for
residential purposes or for commercial, industrial, or other productive purposes other than agricultural, and is open to
disposition or concession, shall be disposed of under the provisions of this chapter and not otherwise.

Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case may be, to any person,
corporation, or association authorized to purchase or lease public lands for agricultural purposes. x x x.

Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be disposed of to private parties by
lease only and not otherwise, as soon as the President, upon recommendation by the Secretary of Agriculture, shall
declare that the same are not necessary for the public service and are open to disposition under this chapter. The lands
included in class (d) may be disposed of by sale or lease under the provisions of this Act." (Emphasis supplied)

Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution, Section 58 of Act No. 2874
prohibiting the sale of government reclaimed, foreshore and marshy disposable lands of the public domain. All these
lands are intended for residential, commercial, industrial or other non-agricultural purposes. As before, Section 61
allowed only the lease of such lands to private parties. The government could sell to private parties only lands falling
under Section 59 (d) of CA No. 141, or those lands for non-agricultural purposes not classified as government
reclaimed, foreshore and marshy disposable lands of the public domain. Foreshore lands, however, became inalienable
under the 1935 Constitution which only allowed the lease of these lands to qualified private parties.

101
Section 58 of CA No. 141 expressly states that disposable lands of the public domain intended for residential,
commercial, industrial or other productive purposes other than agricultural "shall be disposed of under the provisions of
this chapter and not otherwise." Under Section 10 of CA No. 141, the term "disposition" includes lease of the land. Any
disposition of government reclaimed, foreshore and marshy disposable lands for non-agricultural purposes must
comply with Chapter IX, Title III of CA No. 141,54 unless a subsequent law amended or repealed these provisions.

In his concurring opinion in the landmark case of Republic Real Estate Corporation v. Court of Appeals,55 Justice
Reynato S. Puno summarized succinctly the law on this matter, as follows:

"Foreshore lands are lands of public dominion intended for public use. So too are lands reclaimed by the government
by dredging, filling, or other means. Act 1654 mandated that the control and disposition of the foreshore and lands
under water remained in the national government. Said law allowed only the 'leasing' of reclaimed land. The Public
Land Acts of 1919 and 1936 also declared that the foreshore and lands reclaimed by the government were to be
"disposed of to private parties by lease only and not otherwise." Before leasing, however, the Governor-General, upon
recommendation of the Secretary of Agriculture and Natural Resources, had first to determine that the land reclaimed
was not necessary for the public service. This requisite must have been met before the land could be disposed of. But
even then, the foreshore and lands under water were not to be alienated and sold to private parties. The disposition of
the reclaimed land was only by lease. The land remained property of the State." (Emphasis supplied)

As observed by Justice Puno in his concurring opinion, "Commonwealth Act No. 141 has remained in effect at
present."

The State policy prohibiting the sale to private parties of government reclaimed, foreshore and marshy alienable lands
of the public domain, first implemented in 1907 was thus reaffirmed in CA No. 141 after the 1935 Constitution took
effect. The prohibition on the sale of foreshore lands, however, became a constitutional edict under the 1935
Constitution. Foreshore lands became inalienable as natural resources of the State, unless reclaimed by the government
and classified as agricultural lands of the public domain, in which case they would fall under the classification of
government reclaimed lands.

After the effectivity of the 1935 Constitution, government reclaimed and marshy disposable lands of the public domain
continued to be only leased and not sold to private parties.56 These lands remained sui generis, as the only alienable or
disposable lands of the public domain the government could not sell to private parties.

Since then and until now, the only way the government can sell to private parties government reclaimed and marshy
disposable lands of the public domain is for the legislature to pass a law authorizing such sale. CA No. 141 does not
authorize the President to reclassify government reclaimed and marshy lands into other non-agricultural lands under
Section 59 (d). Lands classified under Section 59 (d) are the only alienable or disposable lands for non-agricultural
purposes that the government could sell to private parties.

Moreover, Section 60 of CA No. 141 expressly requires congressional authority before lands under Section 59 that the
government previously transferred to government units or entities could be sold to private parties. Section 60 of CA
No. 141 declares that –

"Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the Secretary of Agriculture and
Natural Resources, be reasonably necessary for the purposes for which such sale or lease is requested, and shall not
exceed one hundred and forty-four hectares: Provided, however, That this limitation shall not apply to grants,
donations, or transfers made to a province, municipality or branch or subdivision of the Government for the purposes
deemed by said entities conducive to the public interest; but the land so granted, donated, or transferred to a province,
municipality or branch or subdivision of the Government shall not be alienated, encumbered, or otherwise disposed of
in a manner affecting its title, except when authorized by Congress: x x x." (Emphasis supplied)

The congressional authority required in Section 60 of CA No. 141 mirrors the legislative authority required in Section
56 of Act No. 2874.

One reason for the congressional authority is that Section 60 of CA No. 141 exempted government units and entities
from the maximum area of public lands that could be acquired from the State. These government units and entities
should not just turn around and sell these lands to private parties in violation of constitutional or statutory limitations.
Otherwise, the transfer of lands for non-agricultural purposes to government units and entities could be used to
circumvent constitutional limitations on ownership of alienable or disposable lands of the public domain. In the same
manner, such transfers could also be used to evade the statutory prohibition in CA No. 141 on the sale of government
reclaimed and marshy lands of the public domain to private parties. Section 60 of CA No. 141 constitutes by operation
of law a lien on these lands.57

102
In case of sale or lease of disposable lands of the public domain falling under Section 59 of CA No. 141, Sections 63
and 67 require a public bidding. Sections 63 and 67 of CA No. 141 provide as follows:

"Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for public purposes, the Director of
Lands shall ask the Secretary of Agriculture and Commerce (now the Secretary of Natural Resources) for authority to
dispose of the same. Upon receipt of such authority, the Director of Lands shall give notice by public advertisement in
the same manner as in the case of leases or sales of agricultural public land, x x x.

Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be made to the highest bidder. x x x."
(Emphasis supplied)

Thus, CA No. 141 mandates the Government to put to public auction all leases or sales of alienable or disposable lands
of the public domain.58

Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the Spanish Law of Waters of
1866. Private parties could still reclaim portions of the sea with government permission. However, the reclaimed land
could become private land only if classified as alienable agricultural land of the public domain open to disposition
under CA No. 141. The 1935 Constitution prohibited the alienation of all natural resources except public agricultural
lands.

The Civil Code of 1950

The Civil Code of 1950 readopted substantially the definition of property of public dominion found in the Civil Code
of 1889. Articles 420 and 422 of the Civil Code of 1950 state that –

"Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State,
banks, shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some public service or for the
development of the national wealth.

x x x.

Art. 422. Property of public dominion, when no longer intended for public use or for public service, shall form part of
the patrimonial property of the State."

Again, the government must formally declare that the property of public dominion is no longer needed for public use or
public service, before the same could be classified as patrimonial property of the State.59 In the case of government
reclaimed and marshy lands of the public domain, the declaration of their being disposable, as well as the manner of
their disposition, is governed by the applicable provisions of CA No. 141.

Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those properties of the
State which, without being for public use, are intended for public service or the "development of the national wealth."
Thus, government reclaimed and marshy lands of the State, even if not employed for public use or public service, if
developed to enhance the national wealth, are classified as property of public dominion.

Dispositions under the 1973 Constitution

The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the Regalian doctrine. Section 8,
Article XIV of the 1973 Constitution stated that –

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of
agricultural, industrial or commercial, residential, and resettlement lands of the public domain, natural resources shall
not be alienated, and no license, concession, or lease for the exploration, development, exploitation, or utilization of
any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not more than
twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases, beneficial use may be the measure and the limit of the grant." (Emphasis
supplied)

103
The 1973 Constitution prohibited the alienation of all natural resources with the exception of "agricultural, industrial or
commercial, residential, and resettlement lands of the public domain." In contrast, the 1935 Constitution barred the
alienation of all natural resources except "public agricultural lands." However, the term "public agricultural lands" in
the 1935 Constitution encompassed industrial, commercial, residential and resettlement lands of the public domain.60
If the land of public domain were neither timber nor mineral land, it would fall under the classification of agricultural
land of the public domain. Both the 1935 and 1973 Constitutions, therefore, prohibited the alienation of all natural
resources except agricultural lands of the public domain.

The 1973 Constitution, however, limited the alienation of lands of the public domain to individuals who were citizens
of the Philippines. Private corporations, even if wholly owned by Philippine citizens, were no longer allowed to acquire
alienable lands of the public domain unlike in the 1935 Constitution. Section 11, Article XIV of the 1973 Constitution
declared that –

"Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and development requirements of the
natural resources, shall determine by law the size of land of the public domain which may be developed, held or
acquired by, or leased to, any qualified individual, corporation, or association, and the conditions therefor. No private
corporation or association may hold alienable lands of the public domain except by lease not to exceed one thousand
hectares in area nor may any citizen hold such lands by lease in excess of five hundred hectares or acquire by purchase,
homestead or grant, in excess of twenty-four hectares. No private corporation or association may hold by lease,
concession, license or permit, timber or forest lands and other timber or forest resources in excess of one hundred
thousand hectares. However, such area may be increased by the Batasang Pambansa upon recommendation of the
National Economic and Development Authority." (Emphasis supplied)

Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public domain only through
lease. Only individuals could now acquire alienable lands of the public domain, and private corporations became
absolutely barred from acquiring any kind of alienable land of the public domain. The constitutional ban extended to all
kinds of alienable lands of the public domain, while the statutory ban under CA No. 141 applied only to government
reclaimed, foreshore and marshy alienable lands of the public domain.

PD No. 1084 Creating the Public Estates Authority

On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1084 creating PEA, a wholly
government owned and controlled corporation with a special charter. Sections 4 and 8 of PD No. 1084, vests PEA with
the following purposes and powers:

"Sec. 4. Purpose. The Authority is hereby created for the following purposes:

(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or other means, or to acquire
reclaimed land;

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any and all kinds of lands,
buildings, estates and other forms of real property, owned, managed, controlled and/or operated by the government;

(c) To provide for, operate or administer such service as may be necessary for the efficient, economical and beneficial
utilization of the above properties.

Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the purposes for which it is created,
have the following powers and functions:

(a)To prescribe its by-laws.

xxx

(i) To hold lands of the public domain in excess of the area permitted to private corporations by statute.

(j) To reclaim lands and to construct work across, or otherwise, any stream, watercourse, canal, ditch, flume x x x.

xxx

(o) To perform such acts and exercise such functions as may be necessary for the attainment of the purposes and
objectives herein specified." (Emphasis supplied)

104
PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public domain. Foreshore areas are
those covered and uncovered by the ebb and flow of the tide.61 Submerged areas are those permanently under water
regardless of the ebb and flow of the tide.62 Foreshore and submerged areas indisputably belong to the public
domain63 and are inalienable unless reclaimed, classified as alienable lands open to disposition, and further declared no
longer needed for public service.

The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the public domain did not
apply to PEA since it was then, and until today, a fully owned government corporation. The constitutional ban applied
then, as it still applies now, only to "private corporations and associations." PD No. 1084 expressly empowers PEA "to
hold lands of the public domain" even "in excess of the area permitted to private corporations by statute." Thus, PEA
can hold title to private lands, as well as title to lands of the public domain.

In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain, there must be
legislative authority empowering PEA to sell these lands. This legislative authority is necessary in view of Section 60
of CA No.141, which states –

"Sec. 60. x x x; but the land so granted, donated or transferred to a province, municipality, or branch or subdivision of
the Government shall not be alienated, encumbered or otherwise disposed of in a manner affecting its title, except when
authorized by Congress; x x x." (Emphasis supplied)

Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and submerged alienable
lands of the public domain. Nevertheless, any legislative authority granted to PEA to sell its reclaimed alienable lands
of the public domain would be subject to the constitutional ban on private corporations from acquiring alienable lands
of the public domain. Hence, such legislative authority could only benefit private individuals.

Dispositions under the 1987 Constitution

The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the Regalian doctrine. The 1987
Constitution declares that all natural resources are "owned by the State," and except for alienable agricultural lands of
the public domain, natural resources cannot be alienated. Sections 2 and 3, Article XII of the 1987 Constitution state
that –

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and supervision of the State. x x x.

Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national
parks. Agricultural lands of the public domain may be further classified by law according to the uses which they may
be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or
associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-
five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of
the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by
purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of
agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired,
developed, held, or leased and the conditions therefor." (Emphasis supplied)

The 1987 Constitution continues the State policy in the 1973 Constitution banning private corporations from acquiring
any kind of alienable land of the public domain. Like the 1973 Constitution, the 1987 Constitution allows private
corporations to hold alienable lands of the public domain only through lease. As in the 1935 and 1973 Constitutions,
the general law governing the lease to private corporations of reclaimed, foreshore and marshy alienable lands of the
public domain is still CA No. 141.

The Rationale behind the Constitutional Ban

The rationale behind the constitutional ban on corporations from acquiring, except through lease, alienable lands of the
public domain is not well understood. During the deliberations of the 1986 Constitutional Commission, the
commissioners probed the rationale behind this ban, thus:

105
"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which says:

`No private corporation or association may hold alienable lands of the public domain except by lease, not to exceed one
thousand hectares in area.'

If we recall, this provision did not exist under the 1935 Constitution, but this was introduced in the 1973 Constitution.
In effect, it prohibits private corporations from acquiring alienable public lands. But it has not been very clear in
jurisprudence what the reason for this is. In some of the cases decided in 1982 and 1983, it was indicated that the
purpose of this is to prevent large landholdings. Is that the intent of this provision?

MR. VILLEGAS: I think that is the spirit of the provision.

FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances where the Iglesia ni Cristo was
not allowed to acquire a mere 313-square meter land where a chapel stood because the Supreme Court said it would be
in violation of this." (Emphasis supplied)

In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional ban in this way:

"Indeed, one purpose of the constitutional prohibition against purchases of public agricultural lands by private
corporations is to equitably diffuse land ownership or to encourage 'owner-cultivatorship and the economic family-size
farm' and to prevent a recurrence of cases like the instant case. Huge landholdings by corporations or private persons
had spawned social unrest."

However, if the constitutional intent is to prevent huge landholdings, the Constitution could have simply limited the
size of alienable lands of the public domain that corporations could acquire. The Constitution could have followed the
limitations on individuals, who could acquire not more than 24 hectares of alienable lands of the public domain under
the 1973 Constitution, and not more than 12 hectares under the 1987 Constitution.

If the constitutional intent is to encourage economic family-size farms, placing the land in the name of a corporation
would be more effective in preventing the break-up of farmlands. If the farmland is registered in the name of a
corporation, upon the death of the owner, his heirs would inherit shares in the corporation instead of subdivided parcels
of the farmland. This would prevent the continuing break-up of farmlands into smaller and smaller plots from one
generation to the next.

In actual practice, the constitutional ban strengthens the constitutional limitation on individuals from acquiring more
than the allowed area of alienable lands of the public domain. Without the constitutional ban, individuals who already
acquired the maximum area of alienable lands of the public domain could easily set up corporations to acquire more
alienable public lands. An individual could own as many corporations as his means would allow him. An individual
could even hide his ownership of a corporation by putting his nominees as stockholders of the corporation. The
corporation is a convenient vehicle to circumvent the constitutional limitation on acquisition by individuals of alienable
lands of the public domain.

The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer ownership of only a limited area of
alienable land of the public domain to a qualified individual. This constitutional intent is safeguarded by the provision
prohibiting corporations from acquiring alienable lands of the public domain, since the vehicle to circumvent the
constitutional intent is removed. The available alienable public lands are gradually decreasing in the face of an ever-
growing population. The most effective way to insure faithful adherence to this constitutional intent is to grant or sell
alienable lands of the public domain only to individuals. This, it would seem, is the practical benefit arising from the
constitutional ban.

The Amended Joint Venture Agreement

The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three properties, namely:

1. "[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo Boulevard in Paranaque and
Las Pinas, Metro Manila, with a combined titled area of 1,578,441 square meters;"

2. "[A]nother area of 2,421,559 square meters contiguous to the three islands;" and

3. "[A]t AMARI's option as approved by PEA, an additional 350 hectares more or less to regularize the configuration
of the reclaimed area."65

106
PEA confirms that the Amended JVA involves "the development of the Freedom Islands and further reclamation of
about 250 hectares x x x," plus an option "granted to AMARI to subsequently reclaim another 350 hectares x x x."66

In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of the 750-hectare
reclamation project have been reclaimed, and the rest of the 592.15 hectares are still submerged areas forming part of
Manila Bay.

Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's "actual cost" in
partially reclaiming the Freedom Islands. AMARI will also complete, at its own expense, the reclamation of the
Freedom Islands. AMARI will further shoulder all the reclamation costs of all the other areas, totaling 592.15 hectares,
still to be reclaimed. AMARI and PEA will share, in the proportion of 70 percent and 30 percent, respectively, the total
net usable area which is defined in the Amended JVA as the total reclaimed area less 30 percent earmarked for
common areas. Title to AMARI's share in the net usable area, totaling 367.5 hectares, will be issued in the name of
AMARI. Section 5.2 (c) of the Amended JVA provides that –

"x x x, PEA shall have the duty to execute without delay the necessary deed of transfer or conveyance of the title
pertaining to AMARI's Land share based on the Land Allocation Plan. PEA, when requested in writing by AMARI,
shall then cause the issuance and delivery of the proper certificates of title covering AMARI's Land Share in the name
of AMARI, x x x; provided, that if more than seventy percent (70%) of the titled area at any given time pertains to
AMARI, PEA shall deliver to AMARI only seventy percent (70%) of the titles pertaining to AMARI, until such time
when a corresponding proportionate area of additional land pertaining to PEA has been titled." (Emphasis supplied)

Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5 hectares of reclaimed land
which will be titled in its name.

To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture PEA's statutory
authority, rights and privileges to reclaim foreshore and submerged areas in Manila Bay. Section 3.2.a of the Amended
JVA states that –

"PEA hereby contributes to the joint venture its rights and privileges to perform Rawland Reclamation and Horizontal
Development as well as own the Reclamation Area, thereby granting the Joint Venture the full and exclusive right,
authority and privilege to undertake the Project in accordance with the Master Development Plan."

The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its supplemental
agreement dated August 9, 1995.

The Threshold Issue

The threshold issue is whether AMARI, a private corporation, can acquire and own under the Amended JVA 367.5
hectares of reclaimed foreshore and submerged areas in Manila Bay in view of Sections 2 and 3, Article XII of the
1987 Constitution which state that:

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not be alienated. x x x.

xxx

Section 3. x x x Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or
associations may not hold such alienable lands of the public domain except by lease, x x x."(Emphasis supplied)

Classification of Reclaimed Foreshore and Submerged Areas

PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila Bay are alienable or
disposable lands of the public domain. In its Memorandum,67 PEA admits that –

"Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as alienable and disposable lands of
the public domain:

'Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the government by dredging, filling, or other means;

107
x x x.'" (Emphasis supplied)

Likewise, the Legal Task Force68 constituted under Presidential Administrative Order No. 365 admitted in its Report
and Recommendation to then President Fidel V. Ramos, "[R]eclaimed lands are classified as alienable and disposable
lands of the public domain."69 The Legal Task Force concluded that –

"D. Conclusion

Reclaimed lands are lands of the public domain. However, by statutory authority, the rights of ownership and
disposition over reclaimed lands have been transferred to PEA, by virtue of which PEA, as owner, may validly convey
the same to any qualified person without violating the Constitution or any statute.

The constitutional provision prohibiting private corporations from holding public land, except by lease (Sec. 3, Art.
XVII,70 1987 Constitution), does not apply to reclaimed lands whose ownership has passed on to PEA by statutory
grant."

Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of Manila Bay are part of the
"lands of the public domain, waters x x x and other natural resources" and consequently "owned by the State." As such,
foreshore and submerged areas "shall not be alienated," unless they are classified as "agricultural lands" of the public
domain. The mere reclamation of these areas by PEA does not convert these inalienable natural resources of the State
into alienable or disposable lands of the public domain. There must be a law or presidential proclamation officially
classifying these reclaimed lands as alienable or disposable and open to disposition or concession. Moreover, these
reclaimed lands cannot be classified as alienable or disposable if the law has reserved them for some public or quasi-
public use.71

Section 8 of CA No. 141 provides that "only those lands shall be declared open to disposition or concession which have
been officially delimited and classified."72 The President has the authority to classify inalienable lands of the public
domain into alienable or disposable lands of the public domain, pursuant to Section 6 of CA No. 141. In Laurel vs.
Garcia,73 the Executive Department attempted to sell the Roppongi property in Tokyo, Japan, which was acquired by
the Philippine Government for use as the Chancery of the Philippine Embassy. Although the Chancery had transferred
to another location thirteen years earlier, the Court still ruled that, under Article 42274 of the Civil Code, a property of
public dominion retains such character until formally declared otherwise. The Court ruled that –

"The fact that the Roppongi site has not been used for a long time for actual Embassy service does not automatically
convert it to patrimonial property. Any such conversion happens only if the property is withdrawn from public use
(Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]. A property continues to be part of the public
domain, not available for private appropriation or ownership 'until there is a formal declaration on the part of the
government to withdraw it from being such' (Ignacio v. Director of Lands, 108 Phil. 335 [1960]." (Emphasis supplied)

PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for lands reclaimed by PEA
from the foreshore or submerged areas of Manila Bay. On January 19, 1988 then President Corazon C. Aquino issued
Special Patent No. 3517 in the name of PEA for the 157.84 hectares comprising the partially reclaimed Freedom
Islands. Subsequently, on April 9, 1999 the Register of Deeds of the Municipality of Paranaque issued TCT Nos. 7309,
7311 and 7312 in the name of PEA pursuant to Section 103 of PD No. 1529 authorizing the issuance of certificates of
title corresponding to land patents. To this day, these certificates of title are still in the name of PEA.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the Freedom Islands, is
equivalent to an official proclamation classifying the Freedom Islands as alienable or disposable lands of the public
domain. PD No. 1085 and President Aquino's issuance of a land patent also constitute a declaration that the Freedom
Islands are no longer needed for public service. The Freedom Islands are thus alienable or disposable lands of the
public domain, open to disposition or concession to qualified parties.

At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the Freedom Islands
although subsequently there were partial erosions on some areas. The government had also completed the necessary
surveys on these islands. Thus, the Freedom Islands were no longer part of Manila Bay but part of the land mass.
Section 3, Article XII of the 1987 Constitution classifies lands of the public domain into "agricultural, forest or timber,
mineral lands, and national parks." Being neither timber, mineral, nor national park lands, the reclaimed Freedom
Islands necessarily fall under the classification of agricultural lands of the public domain. Under the 1987 Constitution,
agricultural lands of the public domain are the only natural resources that the State may alienate to qualified private
parties. All other natural resources, such as the seas or bays, are "waters x x x owned by the State" forming part of the
public domain, and are inalienable pursuant to Section 2, Article XII of the 1987 Constitution.

108
AMARI claims that the Freedom Islands are private lands because CDCP, then a private corporation, reclaimed the
islands under a contract dated November 20, 1973 with the Commissioner of Public Highways. AMARI, citing Article
5 of the Spanish Law of Waters of 1866, argues that "if the ownership of reclaimed lands may be given to the party
constructing the works, then it cannot be said that reclaimed lands are lands of the public domain which the State may
not alienate."75 Article 5 of the Spanish Law of Waters reads as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by the provinces,
pueblos or private persons, with proper permission, shall become the property of the party constructing such works,
unless otherwise provided by the terms of the grant of authority." (Emphasis supplied)

Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea only with "proper
permission" from the State. Private parties could own the reclaimed land only if not "otherwise provided by the terms
of the grant of authority." This clearly meant that no one could reclaim from the sea without permission from the State
because the sea is property of public dominion. It also meant that the State could grant or withhold ownership of the
reclaimed land because any reclaimed land, like the sea from which it emerged, belonged to the State. Thus, a private
person reclaiming from the sea without permission from the State could not acquire ownership of the reclaimed land
which would remain property of public dominion like the sea it replaced.76 Article 5 of the Spanish Law of Waters of
1866 adopted the time-honored principle of land ownership that "all lands that were not acquired from the government,
either by purchase or by grant, belong to the public domain."77

Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the disposition of
public lands. In particular, CA No. 141 requires that lands of the public domain must first be classified as alienable or
disposable before the government can alienate them. These lands must not be reserved for public or quasi-public
purposes.78 Moreover, the contract between CDCP and the government was executed after the effectivity of the 1973
Constitution which barred private corporations from acquiring any kind of alienable land of the public domain. This
contract could not have converted the Freedom Islands into private lands of a private corporation.

Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the reclamation of areas under
water and revested solely in the National Government the power to reclaim lands. Section 1 of PD No. 3-A declared
that –

"The provisions of any law to the contrary notwithstanding, the reclamation of areas under water, whether foreshore or
inland, shall be limited to the National Government or any person authorized by it under a proper contract. (Emphasis
supplied)

x x x."

PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of areas under water could
now be undertaken only by the National Government or by a person contracted by the National Government. Private
parties may reclaim from the sea only under a contract with the National Government, and no longer by grant or
permission as provided in Section 5 of the Spanish Law of Waters of 1866.

Executive Order No. 525, issued on February 14, 1979, designated PEA as the National Government's implementing
arm to undertake "all reclamation projects of the government," which "shall be undertaken by the PEA or through a
proper contract executed by it with any person or entity." Under such contract, a private party receives compensation
for reclamation services rendered to PEA. Payment to the contractor may be in cash, or in kind consisting of portions of
the reclaimed land, subject to the constitutional ban on private corporations from acquiring alienable lands of the public
domain. The reclaimed land can be used as payment in kind only if the reclaimed land is first classified as alienable or
disposable land open to disposition, and then declared no longer needed for public service.

The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares which are still
submerged and forming part of Manila Bay. There is no legislative or Presidential act classifying these submerged
areas as alienable or disposable lands of the public domain open to disposition. These submerged areas are not covered
by any patent or certificate of title. There can be no dispute that these submerged areas form part of the public domain,
and in their present state are inalienable and outside the commerce of man. Until reclaimed from the sea, these
submerged areas are, under the Constitution, "waters x x x owned by the State," forming part of the public domain and
consequently inalienable. Only when actually reclaimed from the sea can these submerged areas be classified as public
agricultural lands, which under the Constitution are the only natural resources that the State may alienate. Once
reclaimed and transformed into public agricultural lands, the government may then officially classify these lands as
alienable or disposable lands open to disposition. Thereafter, the government may declare these lands no longer needed

109
for public service. Only then can these reclaimed lands be considered alienable or disposable lands of the public
domain and within the commerce of man.

The classification of PEA's reclaimed foreshore and submerged lands into alienable or disposable lands open to
disposition is necessary because PEA is tasked under its charter to undertake public services that require the use of
lands of the public domain. Under Section 5 of PD No. 1084, the functions of PEA include the following: "[T]o own or
operate railroads, tramways and other kinds of land transportation, x x x; [T]o construct, maintain and operate such
systems of sanitary sewers as may be necessary; [T]o construct, maintain and operate such storm drains as may be
necessary." PEA is empowered to issue "rules and regulations as may be necessary for the proper use by private parties
of any or all of the highways, roads, utilities, buildings and/or any of its properties and to impose or collect fees or tolls
for their use." Thus, part of the reclaimed foreshore and submerged lands held by the PEA would actually be needed for
public use or service since many of the functions imposed on PEA by its charter constitute essential public services.

Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily responsible for integrating,
directing, and coordinating all reclamation projects for and on behalf of the National Government." The same section
also states that "[A]ll reclamation projects shall be approved by the President upon recommendation of the PEA, and
shall be undertaken by the PEA or through a proper contract executed by it with any person or entity; x x x." Thus,
under EO No. 525, in relation to PD No. 3-A and PD No.1084, PEA became the primary implementing agency of the
National Government to reclaim foreshore and submerged lands of the public domain. EO No. 525 recognized PEA as
the government entity "to undertake the reclamation of lands and ensure their maximum utilization in promoting public
welfare and interests."79 Since large portions of these reclaimed lands would obviously be needed for public service,
there must be a formal declaration segregating reclaimed lands no longer needed for public service from those still
needed for public service.1âwphi1.nêt

Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be owned by the PEA,"
could not automatically operate to classify inalienable lands into alienable or disposable lands of the public domain.
Otherwise, reclaimed foreshore and submerged lands of the public domain would automatically become alienable once
reclaimed by PEA, whether or not classified as alienable or disposable.

The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No. 525, vests in the Department
of Environment and Natural Resources ("DENR" for brevity) the following powers and functions:

"Sec. 4. Powers and Functions. The Department shall:

(1) x x x

xxx

(4) Exercise supervision and control over forest lands, alienable and disposable public lands, mineral resources and, in
the process of exercising such control, impose appropriate taxes, fees, charges, rentals and any such form of levy and
collect such revenues for the exploration, development, utilization or gathering of such resources;

xxx

(14) Promulgate rules, regulations and guidelines on the issuance of licenses, permits, concessions, lease agreements
and such other privileges concerning the development, exploration and utilization of the country's marine, freshwater,
and brackish water and over all aquatic resources of the country and shall continue to oversee, supervise and police our
natural resources; cancel or cause to cancel such privileges upon failure, non-compliance or violations of any
regulation, order, and for all other causes which are in furtherance of the conservation of natural resources and
supportive of the national interest;

(15) Exercise exclusive jurisdiction on the management and disposition of all lands of the public domain and serve as
the sole agency responsible for classification, sub-classification, surveying and titling of lands in consultation with
appropriate agencies."80 (Emphasis supplied)

As manager, conservator and overseer of the natural resources of the State, DENR exercises "supervision and control
over alienable and disposable public lands." DENR also exercises "exclusive jurisdiction on the management and
disposition of all lands of the public domain." Thus, DENR decides whether areas under water, like foreshore or
submerged areas of Manila Bay, should be reclaimed or not. This means that PEA needs authorization from DENR
before PEA can undertake reclamation projects in Manila Bay, or in any part of the country.

110
DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain. Hence, DENR
decides whether reclaimed lands of PEA should be classified as alienable under Sections 681 and 782 of CA No. 141.
Once DENR decides that the reclaimed lands should be so classified, it then recommends to the President the issuance
of a proclamation classifying the lands as alienable or disposable lands of the public domain open to disposition. We
note that then DENR Secretary Fulgencio S. Factoran, Jr. countersigned Special Patent No. 3517 in compliance with
the Revised Administrative Code and Sections 6 and 7 of CA No. 141.

In short, DENR is vested with the power to authorize the reclamation of areas under water, while PEA is vested with
the power to undertake the physical reclamation of areas under water, whether directly or through private contractors.
DENR is also empowered to classify lands of the public domain into alienable or disposable lands subject to the
approval of the President. On the other hand, PEA is tasked to develop, sell or lease the reclaimed alienable lands of the
public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not make the reclaimed
lands alienable or disposable lands of the public domain, much less patrimonial lands of PEA. Likewise, the mere
transfer by the National Government of lands of the public domain to PEA does not make the lands alienable or
disposable lands of the public domain, much less patrimonial lands of PEA.

Absent two official acts – a classification that these lands are alienable or disposable and open to disposition and a
declaration that these lands are not needed for public service, lands reclaimed by PEA remain inalienable lands of the
public domain. Only such an official classification and formal declaration can convert reclaimed lands into alienable or
disposable lands of the public domain, open to disposition under the Constitution, Title I and Title III83 of CA No. 141
and other applicable laws.84

PEA's Authority to Sell Reclaimed Lands

PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public domain, the reclaimed lands
shall be disposed of in accordance with CA No. 141, the Public Land Act. PEA, citing Section 60 of CA No. 141,
admits that reclaimed lands transferred to a branch or subdivision of the government "shall not be alienated,
encumbered, or otherwise disposed of in a manner affecting its title, except when authorized by Congress: x x x."85
(Emphasis by PEA)

In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised Administrative Code of 1987, which states that –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the Government is authorized by law
to be conveyed, the deed of conveyance shall be executed in behalf of the government by the following: x x x."

Thus, the Court concluded that a law is needed to convey any real property belonging to the Government. The Court
declared that -

"It is not for the President to convey real property of the government on his or her own sole will. Any such conveyance
must be authorized and approved by a law enacted by the Congress. It requires executive and legislative concurrence."
(Emphasis supplied)

PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA to sell its reclaimed
lands. PD No. 1085, issued on February 4, 1977, provides that –

"The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the contract for the reclamation and
construction of the Manila-Cavite Coastal Road Project between the Republic of the Philippines and the Construction
and Development Corporation of the Philippines dated November 20, 1973 and/or any other contract or reclamation
covering the same area is hereby transferred, conveyed and assigned to the ownership and administration of the Public
Estates Authority established pursuant to PD No. 1084; Provided, however, That the rights and interests of the
Construction and Development Corporation of the Philippines pursuant to the aforesaid contract shall be recognized
and respected.

Henceforth, the Public Estates Authority shall exercise the rights and assume the obligations of the Republic of the
Philippines (Department of Public Highways) arising from, or incident to, the aforesaid contract between the Republic
of the Philippines and the Construction and Development Corporation of the Philippines.

In consideration of the foregoing transfer and assignment, the Public Estates Authority shall issue in favor of the
Republic of the Philippines the corresponding shares of stock in said entity with an issued value of said shares of stock
(which) shall be deemed fully paid and non-assessable.

111
The Secretary of Public Highways and the General Manager of the Public Estates Authority shall execute such
contracts or agreements, including appropriate agreements with the Construction and Development Corporation of the
Philippines, as may be necessary to implement the above.

Special land patent/patents shall be issued by the Secretary of Natural Resources in favor of the Public Estates
Authority without prejudice to the subsequent transfer to the contractor or his assignees of such portion or portions of
the land reclaimed or to be reclaimed as provided for in the above-mentioned contract. On the basis of such patents, the
Land Registration Commission shall issue the corresponding certificate of title." (Emphasis supplied)

On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that -

"Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA which shall be responsible for its
administration, development, utilization or disposition in accordance with the provisions of Presidential Decree No.
1084. Any and all income that the PEA may derive from the sale, lease or use of reclaimed lands shall be used in
accordance with the provisions of Presidential Decree No. 1084."

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed lands. PD No.
1085 merely transferred "ownership and administration" of lands reclaimed from Manila Bay to PEA, while EO No.
525 declared that lands reclaimed by PEA "shall belong to or be owned by PEA." EO No. 525 expressly states that
PEA should dispose of its reclaimed lands "in accordance with the provisions of Presidential Decree No. 1084," the
charter of PEA.

PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer, deal in, subdivide, dispose,
lease and sell any and all kinds of lands x x x owned, managed, controlled and/or operated by the government."87
(Emphasis supplied) There is, therefore, legislative authority granted to PEA to sell its lands, whether patrimonial or
alienable lands of the public domain. PEA may sell to private parties its patrimonial properties in accordance with the
PEA charter free from constitutional limitations. The constitutional ban on private corporations from acquiring
alienable lands of the public domain does not apply to the sale of PEA's patrimonial lands.

PEA may also sell its alienable or disposable lands of the public domain to private individuals since, with the
legislative authority, there is no longer any statutory prohibition against such sales and the constitutional ban does not
apply to individuals. PEA, however, cannot sell any of its alienable or disposable lands of the public domain to private
corporations since Section 3, Article XII of the 1987 Constitution expressly prohibits such sales. The legislative
authority benefits only individuals. Private corporations remain barred from acquiring any kind of alienable land of the
public domain, including government reclaimed lands.

The provision in PD No. 1085 stating that portions of the reclaimed lands could be transferred by PEA to the
"contractor or his assignees" (Emphasis supplied) would not apply to private corporations but only to individuals
because of the constitutional ban. Otherwise, the provisions of PD No. 1085 would violate both the 1973 and 1987
Constitutions.

The requirement of public auction in the sale of reclaimed lands

Assuming the reclaimed lands of PEA are classified as alienable or disposable lands open to disposition, and further
declared no longer needed for public service, PEA would have to conduct a public bidding in selling or leasing these
lands. PEA must observe the provisions of Sections 63 and 67 of CA No. 141 requiring public auction, in the absence
of a law exempting PEA from holding a public auction.88 Special Patent No. 3517 expressly states that the patent is
issued by authority of the Constitution and PD No. 1084, "supplemented by Commonwealth Act No. 141, as amended."
This is an acknowledgment that the provisions of CA No. 141 apply to the disposition of reclaimed alienable lands of
the public domain unless otherwise provided by law. Executive Order No. 654,89 which authorizes PEA "to determine
the kind and manner of payment for the transfer" of its assets and properties, does not exempt PEA from the
requirement of public auction. EO No. 654 merely authorizes PEA to decide the mode of payment, whether in kind and
in installment, but does not authorize PEA to dispense with public auction.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code, the government is
required to sell valuable government property through public bidding. Section 79 of PD No. 1445 mandates that –

"Section 79. When government property has become unserviceable for any cause, or is no longer needed, it shall, upon
application of the officer accountable therefor, be inspected by the head of the agency or his duly authorized
representative in the presence of the auditor concerned and, if found to be valueless or unsaleable, it may be destroyed
in their presence. If found to be valuable, it may be sold at public auction to the highest bidder under the supervision of

112
the proper committee on award or similar body in the presence of the auditor concerned or other authorized
representative of the Commission, after advertising by printed notice in the Official Gazette, or for not less than three
consecutive days in any newspaper of general circulation, or where the value of the property does not warrant the
expense of publication, by notices posted for a like period in at least three public places in the locality where the
property is to be sold. In the event that the public auction fails, the property may be sold at a private sale at such price
as may be fixed by the same committee or body concerned and approved by the Commission."

It is only when the public auction fails that a negotiated sale is allowed, in which case the Commission on Audit must
approve the selling price.90 The Commission on Audit implements Section 79 of the Government Auditing Code
through Circular No. 89-29691 dated January 27, 1989. This circular emphasizes that government assets must be
disposed of only through public auction, and a negotiated sale can be resorted to only in case of "failure of public
auction."

At the public auction sale, only Philippine citizens are qualified to bid for PEA's reclaimed foreshore and submerged
alienable lands of the public domain. Private corporations are barred from bidding at the auction sale of any kind of
alienable land of the public domain.

PEA originally scheduled a public bidding for the Freedom Islands on December 10, 1991. PEA imposed a condition
that the winning bidder should reclaim another 250 hectares of submerged areas to regularize the shape of the Freedom
Islands, under a 60-40 sharing of the additional reclaimed areas in favor of the winning bidder.92 No one, however,
submitted a bid. On December 23, 1994, the Government Corporate Counsel advised PEA it could sell the Freedom
Islands through negotiation, without need of another public bidding, because of the failure of the public bidding on
December 10, 1991.93

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the additional 250 hectares
still to be reclaimed, it also granted an option to AMARI to reclaim another 350 hectares. The original JVA, a
negotiated contract, enlarged the reclamation area to 750 hectares.94 The failure of public bidding on December 10,
1991, involving only 407.84 hectares,95 is not a valid justification for a negotiated sale of 750 hectares, almost double
the area publicly auctioned. Besides, the failure of public bidding happened on December 10, 1991, more than three
years before the signing of the original JVA on April 25, 1995. The economic situation in the country had greatly
improved during the intervening period.

Reclamation under the BOT Law and the Local Government Code

The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute and clear: "Private
corporations or associations may not hold such alienable lands of the public domain except by lease, x x x." Even
Republic Act No. 6957 ("BOT Law," for brevity), cited by PEA and AMARI as legislative authority to sell reclaimed
lands to private parties, recognizes the constitutional ban. Section 6 of RA No. 6957 states –

"Sec. 6. Repayment Scheme. - For the financing, construction, operation and maintenance of any infrastructure projects
undertaken through the build-operate-and-transfer arrangement or any of its variations pursuant to the provisions of this
Act, the project proponent x x x may likewise be repaid in the form of a share in the revenue of the project or other
non-monetary payments, such as, but not limited to, the grant of a portion or percentage of the reclaimed land, subject
to the constitutional requirements with respect to the ownership of the land: x x x." (Emphasis supplied)

A private corporation, even one that undertakes the physical reclamation of a government BOT project, cannot acquire
reclaimed alienable lands of the public domain in view of the constitutional ban.

Section 302 of the Local Government Code, also mentioned by PEA and AMARI, authorizes local governments in land
reclamation projects to pay the contractor or developer in kind consisting of a percentage of the reclaimed land, to wit:

"Section 302. Financing, Construction, Maintenance, Operation, and Management of Infrastructure Projects by the
Private Sector. x x x

xxx

In case of land reclamation or construction of industrial estates, the repayment plan may consist of the grant of a
portion or percentage of the reclaimed land or the industrial estate constructed."

Although Section 302 of the Local Government Code does not contain a proviso similar to that of the BOT Law, the
constitutional restrictions on land ownership automatically apply even though not expressly mentioned in the Local
Government Code.

113
Thus, under either the BOT Law or the Local Government Code, the contractor or developer, if a corporate entity, can
only be paid with leaseholds on portions of the reclaimed land. If the contractor or developer is an individual, portions
of the reclaimed land, not exceeding 12 hectares96 of non-agricultural lands, may be conveyed to him in ownership in
view of the legislative authority allowing such conveyance. This is the only way these provisions of the BOT Law and
the Local Government Code can avoid a direct collision with Section 3, Article XII of the 1987 Constitution.

Registration of lands of the public domain

Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to public respondent PEA
transformed such lands of the public domain to private lands." This theory is echoed by AMARI which maintains that
the "issuance of the special patent leading to the eventual issuance of title takes the subject land away from the land of
public domain and converts the property into patrimonial or private property." In short, PEA and AMARI contend that
with the issuance of Special Patent No. 3517 and the corresponding certificates of titles, the 157.84 hectares comprising
the Freedom Islands have become private lands of PEA. In support of their theory, PEA and AMARI cite the following
rulings of the Court:

1. Sumail v. Judge of CFI of Cotabato,97 where the Court held –

"Once the patent was granted and the corresponding certificate of title was issued, the land ceased to be part of the
public domain and became private property over which the Director of Lands has neither control nor jurisdiction."

2. Lee Hong Hok v. David,98 where the Court declared -

"After the registration and issuance of the certificate and duplicate certificate of title based on a public land patent, the
land covered thereby automatically comes under the operation of Republic Act 496 subject to all the safeguards
provided therein."3. Heirs of Gregorio Tengco v. Heirs of Jose Aliwalas,99 where the Court ruled -

"While the Director of Lands has the power to review homestead patents, he may do so only so long as the land
remains part of the public domain and continues to be under his exclusive control; but once the patent is registered and
a certificate of title is issued, the land ceases to be part of the public domain and becomes private property over which
the Director of Lands has neither control nor jurisdiction."

4. Manalo v. Intermediate Appellate Court,100 where the Court held –

"When the lots in dispute were certified as disposable on May 19, 1971, and free patents were issued covering the same
in favor of the private respondents, the said lots ceased to be part of the public domain and, therefore, the Director of
Lands lost jurisdiction over the same."

5.Republic v. Court of Appeals,101 where the Court stated –

"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected a land grant to the Mindanao
Medical Center, Bureau of Medical Services, Department of Health, of the whole lot, validly sufficient for initial
registration under the Land Registration Act. Such land grant is constitutive of a 'fee simple' title or absolute title in
favor of petitioner Mindanao Medical Center. Thus, Section 122 of the Act, which governs the registration of grants or
patents involving public lands, provides that 'Whenever public lands in the Philippine Islands belonging to the
Government of the United States or to the Government of the Philippines are alienated, granted or conveyed to persons
or to public or private corporations, the same shall be brought forthwith under the operation of this Act (Land
Registration Act, Act 496) and shall become registered lands.'"

The first four cases cited involve petitions to cancel the land patents and the corresponding certificates of titles issued
to private parties. These four cases uniformly hold that the Director of Lands has no jurisdiction over private lands or
that upon issuance of the certificate of title the land automatically comes under the Torrens System. The fifth case cited
involves the registration under the Torrens System of a 12.8-hectare public land granted by the National Government to
Mindanao Medical Center, a government unit under the Department of Health. The National Government transferred
the 12.8-hectare public land to serve as the site for the hospital buildings and other facilities of Mindanao Medical
Center, which performed a public service. The Court affirmed the registration of the 12.8-hectare public land in the
name of Mindanao Medical Center under Section 122 of Act No. 496. This fifth case is an example of a public land
being registered under Act No. 496 without the land losing its character as a property of public dominion.

In the instant case, the only patent and certificates of title issued are those in the name of PEA, a wholly government
owned corporation performing public as well as proprietary functions. No patent or certificate of title has been issued to

114
any private party. No one is asking the Director of Lands to cancel PEA's patent or certificates of title. In fact, the thrust
of the instant petition is that PEA's certificates of title should remain with PEA, and the land covered by these
certificates, being alienable lands of the public domain, should not be sold to a private corporation.

Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or public ownership of
the land. Registration is not a mode of acquiring ownership but is merely evidence of ownership previously conferred
by any of the recognized modes of acquiring ownership. Registration does not give the registrant a better right than
what the registrant had prior to the registration.102 The registration of lands of the public domain under the Torrens
system, by itself, cannot convert public lands into private lands.103

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the alienable land of the
public domain automatically becomes private land cannot apply to government units and entities like PEA. The transfer
of the Freedom Islands to PEA was made subject to the provisions of CA No. 141 as expressly stated in Special Patent
No. 3517 issued by then President Aquino, to wit:

"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines and in conformity with the
provisions of Presidential Decree No. 1084, supplemented by Commonwealth Act No. 141, as amended, there are
hereby granted and conveyed unto the Public Estates Authority the aforesaid tracts of land containing a total area of
one million nine hundred fifteen thousand eight hundred ninety four (1,915,894) square meters; the technical
description of which are hereto attached and made an integral part hereof." (Emphasis supplied)

Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered by PD No. 1084. Section 60
of CA No. 141 prohibits, "except when authorized by Congress," the sale of alienable lands of the public domain that
are transferred to government units or entities. Section 60 of CA No. 141 constitutes, under Section 44 of PD No. 1529,
a "statutory lien affecting title" of the registered land even if not annotated on the certificate of title.104 Alienable lands
of the public domain held by government entities under Section 60 of CA No. 141 remain public lands because they
cannot be alienated or encumbered unless Congress passes a law authorizing their disposition. Congress, however,
cannot authorize the sale to private corporations of reclaimed alienable lands of the public domain because of the
constitutional ban. Only individuals can benefit from such law.

The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141 does not
automatically convert alienable lands of the public domain into private or patrimonial lands. The alienable lands of the
public domain must be transferred to qualified private parties, or to government entities not tasked to dispose of public
lands, before these lands can become private or patrimonial lands. Otherwise, the constitutional ban will become
illusory if Congress can declare lands of the public domain as private or patrimonial lands in the hands of a government
agency tasked to dispose of public lands. This will allow private corporations to acquire directly from government
agencies limitless areas of lands which, prior to such law, are concededly public lands.

Under EO No. 525, PEA became the central implementing agency of the National Government to reclaim foreshore
and submerged areas of the public domain. Thus, EO No. 525 declares that –

"EXECUTIVE ORDER NO. 525

Designating the Public Estates Authority as the Agency Primarily Responsible for all Reclamation Projects

Whereas, there are several reclamation projects which are ongoing or being proposed to be undertaken in various parts
of the country which need to be evaluated for consistency with national programs;

Whereas, there is a need to give further institutional support to the Government's declared policy to provide for a
coordinated, economical and efficient reclamation of lands;

Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall be limited to the National
Government or any person authorized by it under proper contract;

Whereas, a central authority is needed to act on behalf of the National Government which shall ensure a coordinated
and integrated approach in the reclamation of lands;

Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as a government corporation to undertake
reclamation of lands and ensure their maximum utilization in promoting public welfare and interests; and

Whereas, Presidential Decree No. 1416 provides the President with continuing authority to reorganize the national
government including the transfer, abolition, or merger of functions and offices.

115
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me
by the Constitution and pursuant to Presidential Decree No. 1416, do hereby order and direct the following:

Section 1. The Public Estates Authority (PEA) shall be primarily responsible for integrating, directing, and
coordinating all reclamation projects for and on behalf of the National Government. All reclamation projects shall be
approved by the President upon recommendation of the PEA, and shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity; Provided, that, reclamation projects of any national government
agency or entity authorized under its charter shall be undertaken in consultation with the PEA upon approval of the
President.

x x x ."

As the central implementing agency tasked to undertake reclamation projects nationwide, with authority to sell
reclaimed lands, PEA took the place of DENR as the government agency charged with leasing or selling reclaimed
lands of the public domain. The reclaimed lands being leased or sold by PEA are not private lands, in the same manner
that DENR, when it disposes of other alienable lands, does not dispose of private lands but alienable lands of the public
domain. Only when qualified private parties acquire these lands will the lands become private lands. In the hands of the
government agency tasked and authorized to dispose of alienable of disposable lands of the public domain, these lands
are still public, not private lands.

Furthermore, PEA's charter expressly states that PEA "shall hold lands of the public domain" as well as "any and all
kinds of lands." PEA can hold both lands of the public domain and private lands. Thus, the mere fact that alienable
lands of the public domain like the Freedom Islands are transferred to PEA and issued land patents or certificates of
title in PEA's name does not automatically make such lands private.

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands will sanction a
gross violation of the constitutional ban on private corporations from acquiring any kind of alienable land of the public
domain. PEA will simply turn around, as PEA has now done under the Amended JVA, and transfer several hundreds of
hectares of these reclaimed and still to be reclaimed lands to a single private corporation in only one transaction. This
scheme will effectively nullify the constitutional ban in Section 3, Article XII of the 1987 Constitution which was
intended to diffuse equitably the ownership of alienable lands of the public domain among Filipinos, now numbering
over 80 million strong.

This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain since PEA can
"acquire x x x any and all kinds of lands." This will open the floodgates to corporations and even individuals acquiring
hundreds of hectares of alienable lands of the public domain under the guise that in the hands of PEA these lands are
private lands. This will result in corporations amassing huge landholdings never before seen in this country - creating
the very evil that the constitutional ban was designed to prevent. This will completely reverse the clear direction of
constitutional development in this country. The 1935 Constitution allowed private corporations to acquire not more
than 1,024 hectares of public lands.105 The 1973 Constitution prohibited private corporations from acquiring any kind
of public land, and the 1987 Constitution has unequivocally reiterated this prohibition.

The contention of PEA and AMARI that public lands, once registered under Act No. 496 or PD No. 1529,
automatically become private lands is contrary to existing laws. Several laws authorize lands of the public domain to be
registered under the Torrens System or Act No. 496, now PD No. 1529, without losing their character as public lands.
Section 122 of Act No. 496, and Section 103 of PD No. 1529, respectively, provide as follows:

Act No. 496

"Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x x Government of the Philippine Islands
are alienated, granted, or conveyed to persons or the public or private corporations, the same shall be brought forthwith
under the operation of this Act and shall become registered lands."

PD No. 1529

"Sec. 103. Certificate of Title to Patents. Whenever public land is by the Government alienated, granted or conveyed to
any person, the same shall be brought forthwith under the operation of this Decree." (Emphasis supplied)

Based on its legislative history, the phrase "conveyed to any person" in Section 103 of PD No. 1529 includes
conveyances of public lands to public corporations.

116
Alienable lands of the public domain "granted, donated, or transferred to a province, municipality, or branch or
subdivision of the Government," as provided in Section 60 of CA No. 141, may be registered under the Torrens System
pursuant to Section 103 of PD No. 1529. Such registration, however, is expressly subject to the condition in Section 60
of CA No. 141 that the land "shall not be alienated, encumbered or otherwise disposed of in a manner affecting its title,
except when authorized by Congress." This provision refers to government reclaimed, foreshore and marshy lands of
the public domain that have been titled but still cannot be alienated or encumbered unless expressly authorized by
Congress. The need for legislative authority prevents the registered land of the public domain from becoming private
land that can be disposed of to qualified private parties.

The Revised Administrative Code of 1987 also recognizes that lands of the public domain may be registered under the
Torrens System. Section 48, Chapter 12, Book I of the Code states –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the Government is authorized by law
to be conveyed, the deed of conveyance shall be executed in behalf of the government by the following:

(1) x x x

(2) For property belonging to the Republic of the Philippines, but titled in the name of any political subdivision or of
any corporate agency or instrumentality, by the executive head of the agency or instrumentality." (Emphasis supplied)

Thus, private property purchased by the National Government for expansion of a public wharf may be titled in the
name of a government corporation regulating port operations in the country. Private property purchased by the National
Government for expansion of an airport may also be titled in the name of the government agency tasked to administer
the airport. Private property donated to a municipality for use as a town plaza or public school site may likewise be
titled in the name of the municipality.106 All these properties become properties of the public domain, and if already
registered under Act No. 496 or PD No. 1529, remain registered land. There is no requirement or provision in any
existing law for the de-registration of land from the Torrens System.

Private lands taken by the Government for public use under its power of eminent domain become unquestionably part
of the public domain. Nevertheless, Section 85 of PD No. 1529 authorizes the Register of Deeds to issue in the name of
the National Government new certificates of title covering such expropriated lands. Section 85 of PD No. 1529 states –

"Sec. 85. Land taken by eminent domain. Whenever any registered land, or interest therein, is expropriated or taken by
eminent domain, the National Government, province, city or municipality, or any other agency or instrumentality
exercising such right shall file for registration in the proper Registry a certified copy of the judgment which shall state
definitely by an adequate description, the particular property or interest expropriated, the number of the certificate of
title, and the nature of the public use. A memorandum of the right or interest taken shall be made on each certificate of
title by the Register of Deeds, and where the fee simple is taken, a new certificate shall be issued in favor of the
National Government, province, city, municipality, or any other agency or instrumentality exercising such right for the
land so taken. The legal expenses incident to the memorandum of registration or issuance of a new certificate of title
shall be for the account of the authority taking the land or interest therein." (Emphasis supplied)

Consequently, lands registered under Act No. 496 or PD No. 1529 are not exclusively private or patrimonial lands.
Lands of the public domain may also be registered pursuant to existing laws.

AMARI makes a parting shot that the Amended JVA is not a sale to AMARI of the Freedom Islands or of the lands to
be reclaimed from submerged areas of Manila Bay. In the words of AMARI, the Amended JVA "is not a sale but a
joint venture with a stipulation for reimbursement of the original cost incurred by PEA for the earlier reclamation and
construction works performed by the CDCP under its 1973 contract with the Republic." Whether the Amended JVA is
a sale or a joint venture, the fact remains that the Amended JVA requires PEA to "cause the issuance and delivery of
the certificates of title conveying AMARI's Land Share in the name of AMARI."107

This stipulation still contravenes Section 3, Article XII of the 1987 Constitution which provides that private
corporations "shall not hold such alienable lands of the public domain except by lease." The transfer of title and
ownership to AMARI clearly means that AMARI will "hold" the reclaimed lands other than by lease. The transfer of
title and ownership is a "disposition" of the reclaimed lands, a transaction considered a sale or alienation under CA No.
141,108 the Government Auditing Code,109 and Section 3, Article XII of the 1987 Constitution.

The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged areas form part of the public
domain and are inalienable. Lands reclaimed from foreshore and submerged areas also form part of the public domain
and are also inalienable, unless converted pursuant to law into alienable or disposable lands of the public domain.

117
Historically, lands reclaimed by the government are sui generis, not available for sale to private parties unlike other
alienable public lands. Reclaimed lands retain their inherent potential as areas for public use or public service.
Alienable lands of the public domain, increasingly becoming scarce natural resources, are to be distributed equitably
among our ever-growing population. To insure such equitable distribution, the 1973 and 1987 Constitutions have
barred private corporations from acquiring any kind of alienable land of the public domain. Those who attempt to
dispose of inalienable natural resources of the State, or seek to circumvent the constitutional ban on alienation of lands
of the public domain to private corporations, do so at their own risk.

We can now summarize our conclusions as follows:

1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of title in the
name of PEA, are alienable lands of the public domain. PEA may lease these lands to private corporations but may not
sell or transfer ownership of these lands to private corporations. PEA may only sell these lands to Philippine citizens,
subject to the ownership limitations in the 1987 Constitution and existing laws.

2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of the public domain
until classified as alienable or disposable lands open to disposition and declared no longer needed for public service.
The government can make such classification and declaration only after PEA has reclaimed these submerged areas.
Only then can these lands qualify as agricultural lands of the public domain, which are the only natural resources the
government can alienate. In their present state, the 592.15 hectares of submerged areas are inalienable and outside the
commerce of man.

3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of 77.34 hectares110 of the
Freedom Islands, such transfer is void for being contrary to Section 3, Article XII of the 1987 Constitution which
prohibits private corporations from acquiring any kind of alienable land of the public domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares111 of still submerged areas
of Manila Bay, such transfer is void for being contrary to Section 2, Article XII of the 1987 Constitution which
prohibits the alienation of natural resources other than agricultural lands of the public domain. PEA may reclaim these
submerged areas. Thereafter, the government can classify the reclaimed lands as alienable or disposable, and further
declare them no longer needed for public service. Still, the transfer of such reclaimed alienable lands of the public
domain to AMARI will be void in view of Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution. Under Article
1409112 of the Civil Code, contracts whose "object or purpose is contrary to law," or whose "object is outside the
commerce of men," are "inexistent and void from the beginning." The Court must perform its duty to defend and
uphold the Constitution, and therefore declares the Amended JVA null and void ab initio.

Seventh issue: whether the Court is the proper forum to raise the issue of whether the Amended JVA is grossly
disadvantageous to the government.

Considering that the Amended JVA is null and void ab initio, there is no necessity to rule on this last issue. Besides, the
Court is not a trier of facts, and this last issue involves a determination of factual matters.

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay Development
Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint Venture Agreement which is
hereby declared NULL and VOID ab initio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Austria-Martinez, and Corona, JJ., concur.

Footnote

1 Section 4 of PD No. 1084.

2 PEA's Memorandum dated August 4, 1999, p. 3.

118
3 PEA's Memorandum, supra note 2 at 7. PEA's Memorandum quoted extensively, in its Statement of Facts and the
Case, the Statement of Facts in Senate Committee Report No. 560 dated September 16, 1997.

4 In Opinion No. 330 dated December 23, 1994, the Government Corporate Counsel, citing COA Audit Circular No.
89-296, advised PEA that PEA could negotiate the sale of the 157.84-hectare Freedom Islands in view of the failure of
the public bidding held on December 10, 1991 where there was not a single bidder. See also Senate Committee Report
No. 560, p. 12.

5 PEA's Memorandum, supra note 2 at 9.

6 Ibid.

7 The existence of this report is a matter of judicial notice pursuant to Section 1, Rule 129 of the Rules of Court which
provides, "A court shall take judicial notice, without the introduction of evidence, of x x x the official acts of the
legislature x x x."

8 Teofisto Guingona, Jr.

9 Renato Cayetano.

10 Virgilio C. Abejo.

11 Report and Recommendation of the Legal Task Force, Annex "C", AMARI's Memorandum dated June 19, 1999.

12 AMARI's Comment dated June 24, 1998, p. 3; Rollo, p. 68.

13 AMARI filed three motions for extension of time to file comment (Rollo, pp. 32, 38, 48), while PEA filed nine
motions for extension of time (Rollo, pp. 127, 139).

14 Petitioner's Memorandum dated July 6, 1999, p. 42.

15 Represented by the Office of the Solicitor General, with Solicitor General Ricardo P. Galvez, Assistant Solicitor
General Azucena R. Balanon-Corpuz, and Associate Solicitor Raymund I. Rigodon signing PEA's Memorandum.

16 Represented by Azcuna Yorac Arroyo & Chua Law Offices, and Romulo Mabanta Sayoc & De los Angeles Law
Offices.

17 Salonga v. Paño, 134 SCRA 438 (1985); Gonzales v. Marcos, 65 SCRA 624 (1975 ); Aquino v. Enrile, 59 SCRA
183 (1974 ); Dela Camara v. Enage, 41 SCRA 1 (1971 ).

18 Section 11, Article XIV.

19 Manila Electric Co. v. Judge F. Castro-Bartolome, 114 SCRA 799 (1982); Republic v. CA and Iglesia, and Republic
v. Cendana and Iglesia ni Cristo, 119 SCRA 449 (1982); Republic v. Villanueva and Iglesia ni Cristo, 114 SCRA 875
(1982); Director of Lands v. Lood, 124 SCRA 460 (1983); Republic v. Iglesia ni Cristo, 128 SCRA 44 (1984); Director
of Lands v. Hermanos y Hermanas de Sta. Cruz de Mayo, Inc., 141 SCRA 21 (1986); Director of Lands v. IAC and
Acme Plywood & Veneer Co., 146 SCRA 509 (1986); Republic v. IAC and Roman Catholic Bishop of Lucena, 168
SCRA 165 (1988); Natividad v. CA, 202 SCRA 493 (1991); Villaflor v. CA and Nasipit Lumber Co., 280 SCRA 297
(1997). In Ayog v. Cusi, 118 SCRA 492 (1982), the Court did not apply the constitutional ban in the 1973 Constitution
because the applicant corporation, Biñan Development Co., Inc., had fully complied with all its obligations and even
paid the full purchase price before the effectivity of the 1973 Constitution, although the sales patent was issued after the
1973 Constitution took effect.

20 PD No. 1073.

21 Annex "B", AMARI's Memorandum dated June 19, 1999, Section 5.2 (c) and (e) of the Amended JVA, pp. 16-17.

22 Chavez v. PCGG, 299 SCRA 744 (1998).

23 136 SCRA 27 (1985).

119
24 Article 2 of the Civil Code (prior to its amendment by EO No. 200) provided as follows: "Laws shall take effect
after fifteen days following the completion of their publication in the Official Gazette, unless it is provided otherwise, x
x x."

25 Section 1 of CA No. 638 provides as follows: "There shall be published in the Official Gazette all important
legislative acts and resolutions of the Congress of the Philippines; all executive and administrative orders and
proclamations, except such as have no general applicability; x x x."

26 Section 79 of the Government Auditing Codes provides as follows: "When government property has become
unserviceable for any cause, or is no longer needed, it shall, upon application of the officer accountable therefor, be
inspected by the head of the agency or his duly authorized representative in the presence of the auditor concerned and,
if found to be valueless or unsaleable, it may be destroyed in their presence. If found to be valuable, it may be sold at
public auction to the highest bidder under the supervision of the proper committee on award or similar body in the
presence of the auditor concerned or other authorized representative of the Commission, after advertising by printed
notice in the Official Gazette, or for not less than three consecutive days in any newspaper of general circulation, or
where the value of the property does not warrant the expense of publication, by notices posted for a like period in at
least three public places in the locality where the property is to be sold. In the event that the public auction fails, the
property may be sold at a private sale at such price as may be fixed by the same committee or body concerned and
approved by the Commission."

27 Paat v. Court of Appeals, 266 SCRA 167 (1997); Quisumbing v. Judge Gumban, 193 SCRA 520 (1991); Valmonte
v. Belmonte, Jr., 170 SCRA 256 (1989).

28 See note 22.

29 Section 1, Article XI of the 1987 Constitution states as follows: "Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives."

30 170 SCRA 256 (1989).

31 See note 22.

32 Record of the Constitutional Commission, Vol. V, pp. 24-25, (1986).

33 Supra, Note 22.

34 Ibid.

35 Legaspi v. Civil Service Commission, 150 SCRA 530 (1987).

36 Almonte v. Vasquez, 244 SCRA 286 (1995).

37 See Note 22.

38 Chavez v. PCGG, see note 22; Aquino-Sarmiento v. Morato, 203 SCRA 515 (1991).

39 Almonte v. Vasquez, see note 36.

40 People's Movement for Press Freedom, et al. v. Hon. Raul Manglapus, G.R. No. 84642, En Banc Resolution dated
April 13, 1988; Chavez v. PCGG, see note 22.

41 Section 270 of the National Internal Revenue Code punishes any officer or employee of the Bureau of Internal
Revenue who divulges to any person, except as allowed by law, information regarding the business, income, or estate
of any taxpayer, the secrets, operation, style of work, or apparatus of any manufacturer or producer, or confidential
information regarding the business of any taxpayer, knowledge of which was acquired by him in the discharge of his
official duties. Section 14 of R.A. No. 8800 (Safeguard Measures Act) prohibits the release to the public of confidential
information submitted in evidence to the Tariff Commission. Section 3 (n) of R.A. No. 8504 (Philippine AIDS
Prevention and Control Act) classifies as confidential the medical records of HIV patients. Section 6 (j) of R.A. No.
8043 (Inter-Country Adoption Act) classifies as confidential the records of the adopted child, adopting parents, and
natural parents. Section 94 (f) of R.A. No. 7942 (Philippine Mining Act) requires the Department of Environment and

120
Natural Resources to maintain the confidentiality of confidential information supplied by contractors who are parties to
mineral agreements or financial and technical assistance agreements.

42 The Recopilacion de Leyes de las Indias declared that: "We, having acquired full sovereignty over the Indies, and all
lands, territories, and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still
pertaining to the royal crown and patrimony, it is our will that all lands which are held without proper and true deeds of
grant be restored to us according as they belong to us, in order that after reserving before all what to us or to our
viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and commons in those
places which are peopled, taking into consideration not only their present condition, but also their future and their
probable increase, and after distributing to the natives what may be necessary for tillage and pasturage, confirming
them in what they now have and giving them more if necessary, all the rest of said lands may remain free and
unencumbered for us to dispose of as we may wish." See concurring opinion of Justice Reynato S. Puno in Republic
Real Estate Corporation v. Court of Appeals, 299 SCRA 199 (1998).

43 Cariño v. Insular Government, 41 Phil. 935 (1909). The exception mentioned in Cariño, referring to lands in the
possession of an occupant and of his predecessors-in-interest, since time immemorial, is actually a species of a grant by
the State. The United States Supreme Court, speaking through Justice Oliver Wendell Holmes, Jr., declared in Cariño:
"Prescription is mentioned again in the royal cedula of October 15, 1754, cited in 3 Philippine, 546; 'Where such
possessors shall not be able to produce title deeds, it shall be sufficient if they shall show that ancient possession, as a
valid title by prescription.' It may be that this means possession from before 1700; but, at all events, the principle is
admitted. As prescription, even against the Crown lands, was recognized by the laws of Spain, we see no sufficient
reason for hesitating to admit that it was recognized in the Philippines in regard to lands over which Spain had only a
paper sovereignty." See also Republic v. Lee, 197 SCRA 13 (1991).

44 Article 1 of the Spanish Law of Waters of 1866.

45 Ignacio v. Director of Lands, 108 Phil. 335 (1960); Joven v. Director of Lands, 93 Phil. 134 (1953); Laurel v.
Garcia, 187 SCRA 797 (1990). See concurring opinion of Justice Reynato S. Puno in Republic Real Estate Corporation
v. Court of Appeals, 299 SCRA 199 (1998).

46 Act No. 926, enacted on October 7, 1903, was also titled the Public Land Act. This Act, however, did not cover
reclaimed lands. Nevertheless, Section 23 of this Act provided as follows: "x x x In no case may lands leased under the
provisions of this chapter be taken so as to gain control of adjacent land, water, stream, shore line, way, roadstead, or
other valuable right which in the opinion of the Chief of the Bureau of Public Lands would be prejudicial to the
interests of the public."

47 Section 10 of Act No. 2874 provided as follows: "The words "alienation," "disposition," or "concession" as used in
this Act, shall mean any of the methods authorized by this Act for the acquisition, lease, use, or benefit of the lands of
the public domain other than timber or mineral lands."

48 Title II of Act No. 2874 governed alienable lands of the public domain for agricultural purposes, while Title III of
the same Act governed alienable lands of the public domain for non-agricultural purposes.

49 Section 57 of Act No. 2874 provided as follows: "x x x; but the land so granted, donated, or transferred to a
province, municipality, or branch or subdivision of the Government shall not be alienated, encumbered, or otherwise
disposed of in a manner affecting its title, except when authorized by the legislature; x x x."

50 Krivenko v. Register of Deeds, 79 Phil. 461 (1947).

51 Section 2 of CA No. 141 states as follows: "The provisions of this Act shall apply to the lands of the public domain;
but timber and mineral lands shall be governed by special laws and nothing in this Act provided shall be understood or
construed to change or modify the administration and disposition of the lands commonly called "friar lands" and those
which, being privately owned, have reverted to or become the property of the Commonwealth of the Philippines, which
administration and disposition shall be governed by the laws at present in force or which may hereafter be enacted."

52 Like Act No. 2874, Section 10 of CA No. 141 defined the terms "alienation" and "disposition" as follows: "The
words "alienation," "disposition," or "concession" as used in this Act, shall mean any of the methods authorized by this
Act for the acquisition, lease, use, or benefit of the lands of the public domain other than timber or mineral lands."

53 R.A. No. 6657 has suspended the authority of the President to reclassify forest or mineral lands into agricultural
lands. Section 4 (a) of RA No. 6657 (Comprehensive Agrarian Reform Law of 1988) states, "No reclassification of
forest or mineral lands to agricultural lands shall be undertaken after the approval of this Act until Congress, taking into

121
account ecological, developmental and equity considerations, shall have delimited by law, the specific limits of the
public domain."

54 Covering Sections 58 to 68 of CA No. 141.

55 299 SCRA 199 (1998).

56 Section 1, Article XIII of the 1935 Constitution limited the disposition and utilization of public agricultural lands to
Philippine citizens or to corporations at least sixty percent owned by Philippine citizens. This was, however, subject to
the original Ordinance appended to the 1935 Constitution stating, among others, that until the withdrawal of United
States sovereignty in the Philippines, "Citizens and corporations of the United States shall enjoy in the Commonwealth
of the Philippines all the civil rights of the citizens and corporations, respectively, thereof."

57 Section 44 of PD No. 1529 (previously Section 39 of Act No. 496) provides that "liens, claims or rights arising or
existing under the laws and the Constitution of the Philippines which are not by law required to appear of record in the
Registry of Deeds in order to be valid against subsequent purchasers or encumbrancers of record" constitute statutory
liens affecting the title.1âwphi1.nêt

58 RA No. 730, which took effect on June 18, 1952, authorized the private sale of home lots to actual occupants of
public lands not needed for public service. Section 1 of RA No. 730 provided as follows: "Notwithstanding the
provisions of Sections 61 and 67 of Commonwealth Act No. 141, as amended by RA No. 293, any Filipino citizen of
legal age who is not the owner of a home lot in the municipality or city in which he resides and who had in good faith
established his residence on a parcel of land of the Republic of the Philippines which is not needed for public service,
shall be given preference to purchase at a private sale of which reasonable notice shall be given to him, not more than
one thousand square meters at a price to be fixed by the Director of Lands with the approval of the Secretary of
Agriculture and Natural Resources. x x x." In addition, on June 16, 1948, Congress enacted R.A. No. 293 allowing the
private sale of marshy alienable or disposable lands of the public domain to lessees who have improved and utilized the
same as farms, fishponds or other similar purposes for at least five years from the date of the lease contract with the
government. R.A. No. 293, however, did not apply to marshy lands under Section 56 (c), Title III of CA No. 141 which
refers to marshy lands leased for residential, commercial, industrial or other non-agricultural purposes.

59 See note 49.

60 See note 60.

61 Republic Real Estate Corporation v. Court of Appeals, see note 56.

62 Ibid.

63 Insular Government v. Aldecoa, 19 Phil. 505 (1911); Government v. Cabangis, 53 Phil. 112 (1929).

64 118 SCRA 492 (1982).

65 Annex "B", AMARI's Memorandum, see note 2 at 1 & 2.

66 PEA's Memorandum, see note 6.

67 Ibid., p. 44.

68 See notes 9, 10 & 11.

69 Annex "C", p. 3, AMARI's Memorandum, see note 12 at 3.

70 This should read Article XII.

71 Section 8 of CA No. 141.

72 Emphasis supplied.

73 187 SCRA 797 (1990).

122
74 Article 422 of the Civil Code states as follows: "Property of public dominion, when no longer needed for public use
or public service, shall form part of the patrimonial property of the State."

75 AMARI's Comment dated June 24, 1998, p. 20; Rollo, p. 85.

76 Dizon v. Rodriguez, 13 SCRA 705 (1965); Republic v. Lat Vda. de Castillo, 163 SCRA 286 (1988).

77 Cariño v. Insular Government, 41 Phil. 935 (1909).

78 Proclamation No. 41, issued by President Ramon Magsaysay on July 5, 1954, reserved for "National Park purposes"
464.66 hectares of the public domain in Manila Bay "situated in the cities of Manila and Pasay and the municipality of
Paranaque, Province of Rizal, Island of Luzon," which area, as described in detail in the Proclamation, is "B]ounded on
the North, by Manila Bay; on the East, by Dewey Boulevard; and on the south and west, by Manila Bay." See
concurring opinion of Justice Reynato S. Puno in Republic Real Estate Corporation v. Court of Appeals, 299 SCRA
1999 (1998). Under Sections 2 and 3, Article XII of the 1987 Constitution, "national parks" are inalienable natural
resources of the State.

79 Fifth Whereas clause of EO No. 525.

80 Section 4, Chapter I, Title XIV, Book IV.

81 Section 6 of CA No 141 provides as follows: "The President, upon the recommendation of the Secretary of
Agriculture and Commerce, shall from time to time classify the lands of the public domain into – (a) Alienable or
disposable, x x x."

82 Section 7 of CA No. 141 provides as follows: "For purposes of the administration and disposition of alienable or
disposable public lands, the President, upon recommendation by the Secretary of Agriculture and Commerce, shall
from time to time declare what lands are open to disposition or concession under this Act."

83 On "Lands for Residential, Commercial, or Industrial and other Similar Purposes."

84 RA No. 293, enacted on June 16, 1948, authorized the sale of marshy lands under certain conditions. Section 1 of
RA No. 293 provided as follows: "The provisions of section sixty-one of Commonwealth Act Numbered One hundred
and forty-one to the contrary notwithstanding, marshy lands and lands under water bordering on shores or banks or
navigable lakes or rivers which are covered by subsisting leases or leases which may hereafter be duly granted under
the provisions of the said Act and are already improved and have been utilized for farming, fishpond, or similar
purposes for at least five years from the date of the contract of lease, may be sold to the lessees thereof under the
provisions of Chapter Five of the said Act as soon as the President, upon recommendation of the Secretary of
Agriculture and Natural Resources, shall declare that the same are not necessary for the public service."

85 PEA's Memorandum, see note 2 at 45.

86 See note 73.

87 Section 4 (b) of PD No. 1084

88 R.A. No. 730 allows the private sale of home lots to actual occupants of public lands. See note 63.

89 Issued on February 26, 1981.

90 While PEA claims there was a failure of public bidding on December 10, 1991, there is no showing that the
Commission on Audit approved the price or consideration stipulated in the negotiated Amended JVA as required by
Section 79 of the Government Auditing Code. Senate Committee Report No. 560 did not discuss this issue.

91 Paragraph 2 (a) of COA Circular No. 89-296, on "Sale Thru Negotiation," states that disposal through negotiated
sale may be resorted to if "[T]here was a failure of public auction."

92 Senate Committee Report No. 560, Statement of Facts, p. 7, citing PEA Board Resolution No. 835, as appearing in
the Minutes of the PEA Board of Directors Meeting held on May 30, 1991, per Certification of Jaime T. De Veyra,
Corporate Secretary, dated June 11, 1991.

93 Opinion No. 330, citing COA Audit Circular No. 89-296. See note 5.

123
94 PEA's Memorandum, see note 2.

95 Senate Committee Report No. 560, pp. 7-8, citing the Minutes of Meeting of the PEA Board of Directors held on
December 19, 1991.

96 Section 3, Article XII of the 1987 Constitution provides as follows: "x x x Citizens of the Philippines may x x x
acquire not more than twelve hectares thereof by purchase, homestead or grant." However, Section 6 of R.A. No. 6657
(Comprehensive Agrarian Reform Law) limits the ownership of "public or private agricultural land" to a maximum of
five hectares per person.

97 96 Phil. 946 (1955).

98 48 SCRA 372 (1977).

99 168 SCRA 198 (1988).

100 172 SCRA 795 (1989).

101 73 SCRA 146 (1976).

102 Avila v. Tapucar, 201 SCRA 148 (1991).

103 Republic v. Ayala Cia, et al., 14 SCRA 259 (1965); Dizon v. Rodriguez, 13 SCRA 705 (1965).

104 Section 44 of PD No. 1529 states as follows: "Every registered owner receiving a certificate of title in pursuance of
a decree of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in
good faith, shall hold the same free from all encumbrances except those noted on said certificate and any of the
following encumbrances which may be subsisting, namely: First. Liens, claims or rights arising or existing under the
laws and Constitution of the Philippines which are not by law required to appear of record in the Registry of Deeds in
order to be valid against subsequent purchasers or encumbrancers of record. x x x." Under Section 103 of PD No. 1529,
Section 44 applies to certificates of title issued pursuant to a land patent granted by the government.

105 Section 2, Article XIII of the 1935 Constitution.

106 Harty v. Municipality of Victoria, 13 Phil. 152 (1909).

107 Annex "B", AMARI's Memorandum, see note 21 at 16, Section 5.2 (c) of the Amended JVA.

108 Section 10 of CA No. 141 provides as follows: "Sec. 10. The words "alienation," "disposition," or "concession" as
used in this Act, shall mean any of the methods authorized by this Act for the acquisition, lease, use, or benefit of the
lands of the public domain other than timber or mineral lands."

109 Section 79 of the Government Auditing Code, which requires public auction in the sale of government assets,
includes all kinds of disposal or divestment of government assets. Thus, COA Audit Circular No. 86-264 dated October
16, 1986 speaks of "guidelines (which) shall govern the general procedures on the divestment or disposal of assets of
government-owned and/or controlled corporations and their subsidiaries." Likewise, COA Audit Circular No. 89-296
dated January 27, speaks of "guidelines (which) shall be observed and adhered to in the divestment or disposal of
property and other assets of all government entities/instrumentalities" and that "divestment shall refer to the manner or
scheme of taking away, depriving, withdrawing of an authority, power or title." These COA Circulars implement
Section 79 of the Government Auditing Code.

110 The share of AMARI in the Freedom Islands is 77.34 hectares, which is 70 percent of the net usable area of 110.49
hectares. The net usable area is the total land area of the Freedom Islands less 30 percent allocated for common areas.

111 The share of AMARI in the submerged areas for reclamation is 290.129 hectares, which is 70 percent of the net
usable area of 414.47 hectares.

112 Article 1409 of the Civil Code provides as follows: "The following contracts are inexistent and void from the
beginning: (1) Those whose cause, object or purpose is contrary to law; x x x; (4) Those whose object is outside the
commerce of men; x x x."

124
U.S. Supreme Court

Goldwater v. Carter, 444 U.S. 996 (1979)

Goldwater v. Carter

No. 79-856

Decided December 13, 1979

444 U.S. 996

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

ORDER

The petition for a writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is
remanded to the District Court with directions to dismiss the complaint.

MR. JUSTICE POWELL, concurring.

Although I agree with the result reached by the Court, I would dismiss the complaint as not ripe for judicial review.

This Court has recognized that an issue should not be decided if it is not ripe for judicial review. Buckley v. Valeo, 424
U. S. 1, 424 U. S. 113-114 (1976) (per curiam). Prudential considerations persuade me that a dispute between Congress
and the President is not ready for judicial review unless and until each branch has taken action asserting its
constitutional authority. Differences between the President and the Congress are commonplace under our system. The
differences should, and almost invariably do, turn on political, rather than legal, considerations. The Judicial Branch
should not decide issues affecting the allocation of power between the President and Congress until the political
branches reach a constitutional impasse. Otherwise, we would encourage small groups, or even individual Members, of
Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the
conflict.

MR. JUSTICE MARSHALL concurs in the result.

MR. JUSTICE POWELL concurs in the judgment, chanroblesvirtualawlibrary

Page 444 U. S. 997

and has filed a statement.

MR. JUSTICE REHNQUIST concurs in the judgment and has filed a statement in which MR. CHIEF JUSTICE
BURGER, MR. JUSTICE STEWART, and MR. JUSTICE STEVENS join.

MR. JUSTICE WHITE and MR. JUSTICE BLACKMUN join in the grant of the petition for a writ of certiorari, but
would set the case for argument and give it plenary consideration. MR. JUSTICE BLACKMUN has filed a statement in
which MR. JUSTICE WHITE joins.

MR. JUSTICE BRENNAN would grant the petition for certiorari and affirm the judgment of the Court of Appeals, and
has filed a statement.

MR. JUSTICE POWELL, concurring.

In this case, a few Members of Congress claim that the President's action in terminating the treaty with Taiwan has
deprived them of their constitutional role with respect to chanroblesvirtualawlibrary

Page 444 U. S. 998

125
a change in the supreme law of the land. Congress has taken no official action. In the present posture of this case, we do
not know whether there ever will be an actual confrontation between the Legislative and Executive Branches. Although
the Senate has considered a resolution declaring that Senate approval is necessary for the termination of any mutual
defense treaty, see 125 Cong.Rec. S7015, S7038-S7039 (June 6, 1979), no final vote has been taken on the resolution.
See id. at S16683-S16692 (Nov. 15, 1979). Moreover, it is unclear whether the resolution would have retroactive
effect. See id. at S7054-S7064 (June 6, 1979); id. at S7862 (June 18, 1979). It cannot be said that either the Senate or
the House has rejected the President's claim. If the Congress chooses not to confront the President, it is not our task to
do so. I therefore concur in the dismissal of this case.

II

MR. JUSTICE REHNQUIST suggests, however, that the issue presented by this case is a nonjusticiable political
question which can never be considered by this Court. I cannot agree. In my view, reliance upon the political question
doctrine is inconsistent with our precedents. As set forth in the seminal case of Baker v. Carr, 369 U. S. 186, 369 U. S.
217 (1962), the doctrine incorporates three inquiries: (i) does the issue involve resolution of questions committed by the
text of the Constitution to a coordinate branch of Government? (ii) would resolution of the question demand that a
court move beyond areas of judicial expertise? (iii) do prudential considerations counsel against judicial intervention?
In my opinion the answer to each of these inquiries would require us to decide this case if it were ready for review.

First, the existence of "a textually demonstrable constitutional commitment of the issue to a coordinate political
department," ibid., turns on an examination of the constitutional provisions governing the exercise of the power in
question. chanroblesvirtualawlibrary

Page 444 U. S. 999

Powell v. McCormack, 395 U. S. 486, 395 U. S. 519 (1969). No constitutional provision explicitly confers upon the
President the power to terminate treaties. Further, Art. II, § 2, of the Constitution authorizes the President to make
treaties with the advice and consent of the Senate. Article VI provides that treaties shall be a part of the supreme law of
the land. These provisions add support to the view that the text of the Constitution does not unquestionably commit the
power to terminate treaties to the President alone. Cf. Gilligan v. Morgan, 413 U. S. 1, 413 U. S. 6 (1973); @ 48 U. S.
42 (1849).

Second, there is no "lack of judicially discoverable and manageable standards for resolving" this case; nor is a decision
impossible "without an initial policy determination of a kind clearly for nonjudicial discretion." Baker v. Carr, supra, at
369 U. S. 217. We are asked to decide whether the President may terminate a treaty under the Constitution without
congressional approval. Resolution of the question may not be easy, but it only requires us to apply normal principles
of interpretation to the constitutional provisions at issue. See Powell v. McCormack, supra, at 395 U. S. 548-549. The
present case involves neither review of the President's activities as Commander in Chief nor impermissible interference
in the field of foreign affairs. Such a case would arise if we were asked to decide, for example, whether a treaty
required the President to order troops into a foreign country. But "it is error to suppose that every case or controversy
which touches foreign relations lies beyond judicial cognizance." Baker v. Carr, supra, at 369 U. S. 211. This case
"touches" foreign relations, but the question presented to us concerns only the constitutional division of power between
Congress and the President.

A simple hypothetical demonstrates the confusion that I find inherent in MR. JUSTICE REHNQUIST's opinion
concurring in the judgment. Assume that the President signed a mutual defense treaty with a foreign country and
announced that it chanroblesvirtualawlibrary

Page 444 U. S. 1000

would go into effect despite its rejection by the Senate. Under MR. JUSTICE REHNQUIST's analysis, that situation
would present a political question even though Art. II, § 2, clearly would resolve the dispute. Although the answer to
the hypothetical case seems self-evident because it demands textual, rather than interstitial, analysis, the nature of the
legal issue presented is no different from the issue presented in the case before us. In both cases, the Court would
interpret the Constitution to decide whether congressional approval is necessary to give a Presidential decision on the
validity of a treaty the force of law. Such an inquiry demands no special competence or information beyond the reach
of the Judiciary. Cf. Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U. S. 103, 333 U. S. 111 (1948).
[Footnote 1]

Finally, the political question doctrine rests in part on prudential concerns calling for mutual respect among the three
branches of Government. Thus, the Judicial Branch should avoid "the potentiality of embarrassment [that would result]

126
from multifarious pronouncements by various departments on one question." Similarly, the doctrine restrains judicial
action where there is an "unusual need for unquestioning adherence to a political decision already made." Baker v.
Carr, supra, at 369 U. S. 217.

If this case were ripe for judicial review, see Part I supra, none of these prudential considerations would be present.
chanroblesvirtualawlibrary

Page 444 U. S. 1001

Interpretation of the Constitution does not imply lack of respect for a coordinate branch. Powell v. McCormack, supra,
at 395 U. S. 548. If the President and the Congress had reached irreconcilable positions, final disposition of the
question presented by this case would eliminate, rather than create, multiple constitutional interpretations. The specter
of the Federal Government brought to a halt because of the mutual intransigence of the President and the Congress
would require this Court to provide a resolution pursuant to our duty "to say what the law is.'" United States v. Nixon,
418 U. S. 683, 418 U. S. 703 (1974), quoting @ 5 U. S. 177 (1803).

III

In my view, the suggestion that this case presents a political question is incompatible with this Court's willingness on
previous occasions to decide whether one branch of our Government has impinged upon the power of another. See
Buckley v. Valeo, 424 U.S. at 424 U. S. 138; United States v. Nixon, supra, at 418 U. S. 707; The Pocket Veto Case,
279 U. S. 655, 279 U. S. 676-678 (1929); Myers v. United States, 272 U. S. 52 (1926). [Footnote 2] Under the
chanroblesvirtualawlibrary

Page 444 U. S. 1002

criteria enunciated in Baker v. Carr, we have the responsibility to decide whether both the Executive and Legislative
Branches have constitutional roles to play in termination of a treaty. If the Congress, by appropriate formal action, had
challenged the President's authority to terminate the treaty with Taiwan, the resulting uncertainty could have serious
consequences for our country. In that situation, it would be the duty of this Court to resolve the issue.

[Footnote 1]

The Court has recognized that, in the area of foreign policy, Congress may leave the President with wide discretion that
otherwise might run afoul of the nondelegation doctrine. United States v. Curtiss-Wright Export Corp., 299 U. S. 304
(1936). As stated in that case,

"the President alone has the power to speak or listen as a representative of the Nation. He makes treaties with the advice
and consent of the Senate; but he alone negotiates."

Id. at 299 U. S. 319 (emphasis in original). Resolution of this case would interfere with neither the President's ability to
negotiate treaties nor his duty to execute their provisions. We are merely being asked to decide whether a treaty, which
cannot be ratified without Senate approval, continues in effect until the Senate or perhaps the Congress take further
action.

[Footnote 2]

Coleman v. Miller, 307 U. S. 433 (1939), is not relevant here. In that case, the Court was asked to review the
legitimacy of a State's ratification of a constitutional amendment. Four Members of the Court stated that Congress has
exclusive power over the ratification process. Id. at 307 U. S. 456-460 (Black, J., concurring, joined by Roberts,
Frankfurter, and Douglas, JJ.). Three Members of the Court concluded more narrowly that the Court could not pass
upon the efficacy of state ratification. They also found no standards by which the Court could fix a reasonable time for
the ratification of a proposed amendment. Id. at 307 U. S. 452-454.

The proposed constitutional amendment at issue in Coleman would have overruled decisions of this Court. Compare id.
at 307 U. S. 435, n. 1, with Child Labor Tax Case, 259 U. S. 20 (1922); Hammer v. Dagenhart, 247 U. S. 251 (1918).
Thus, judicial review of the legitimacy of a State's ratification would have compelled this Court to oversee the very
constitutional process used to reverse Supreme Court decisions. In such circumstances, it may be entirely appropriate
for the Judicial Branch of Government to step aside. See Scharpf, Judicial Review and The Political Question: A
Functional Analysis, 75 Yale L.J. 517, 589 (1966). The present case involves no similar principle of judicial
nonintervention.

127
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE
STEVENS join, concurring in the judgment.

I am of the view that the basic question presented by the petitioners in this case is "political," and therefore
nonjusticiable because it involves the authority of the President in the conduct of our country's foreign relations and the
extent to which the Senate or the Congress is authorized to negate the action of the President. In Coleman v. Miller, 307
U. S. 433 (1939), a case in which members of the Kansas Legislature brought an action attacking a vote of the State
Senate in favor of the ratification of the Child Labor Amendment, Mr. Chief Justice Hughes wrote in what is referred to
as the "Opinion of the Court":

"We think that . . . the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or
attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the
ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the
Amendment."

"The precise question as now raised is whether, when the legislature of the State, as we have found, has actually ratified
the proposed amendment, the Court should

Page 444 U. S. 1003

restrain the state officers from certifying the ratification to the Secretary of State, because of an earlier rejection, and
thus prevent the question from coming before the political departments. We find no basis in either Constitution or
statute for such judicial action. Article V, speaking solely of ratification, contains no provision as to rejection. . . ."

Id. at 307 U. S. 450.

Thus, Mr. Chief Justice Hughes' opinion concluded that

"Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination
of the question whether, by lapse of time, its proposal of the amendment had lost its vitality prior to the required
ratifications."

Id. at 307 U. S. 456.

I believe it follows a fortiori from Coleman that the controversy in the instant case is a nonjusticiable political dispute
that should be left for resolution by the Executive and Legislative Branches of the Government. Here, while the
Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as
to that body's participation in the abrogation of a treaty. In this respect, the case is directly analogous to Coleman,
supra. As stated in Dyer v. Blair, 390 F.Supp. 1291, 1302 (N.D.Ill.1975) (three-judge court):

"A question that might be answered in different ways for different amendments must surely be controlled by political
standards, rather than standards easily characterized as judicially manageable."

In light of the absence of any constitutional provision governing the termination of a treaty, and the fact that different
termination procedures may be appropriate for different treaties (see, e.g., 444 U. S. 1, infra), the instant case, in my
view, also "must surely be controlled by political standards."

I think that the justifications for concluding that the question here is political in nature are even more compelling than
in Coleman, because it involves foreign relations -- specifically, chanroblesvirtualawlibrary

Page 444 U. S. 1004

a treaty commitment to use military force in the defense of a foreign government if attacked. In United States v.
Curtiss-Wright Corp., 299 U. S. 304 (1936), this Court said:

"Whether, if the Joint Resolution had related solely to internal affairs, it would be open to the challenge that it
constituted an unlawful delegation of legislative power to the Executive we find it unnecessary to determine. The whole
aim of the resolution is to affect a situation entirely external to the United States, and falling within the category of
foreign affairs. . . ."

Id. at 299 U. S. 315.

128
The present case differs in several important respects from Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579
(1952), cited by petitioners as authority both for reaching the merits of this dispute and for reversing the Court of
Appeals. In Youngstown, private litigants brought a suit contesting the President's authority under his war powers to
seize the Nation's steel industry, an action of profound and demonstrable domestic impact. Here, by contrast, we are
asked to settle a dispute between coequal branches of our Government, each of which has resources available to protect
and assert its interests, resources not available to private litigants outside the judicial forum. [Footnote 2/1] Moreover,
as in Curtiss-Wright, the chanroblesvirtualawlibrary

Page 444 U. S. 1005

effect of this action, as far as we can tell, is "entirely external to the United States, and [falls] within the category of
foreign affairs." Finally, as already noted, the situation presented here is closely akin to that presented in Coleman,
where the Constitution spoke only to the procedure for ratification of an amendment, not to its rejection.

Having decided that the question presented in this action is nonjusticiable, I believe that the appropriate disposition is
for this Court to vacate the decision of the Court of Appeals and remand with instructions for the District Court to
dismiss the complaint. This procedure derives support from our practice in disposing of moot actions in federal courts.
[Footnote 2/2] For more than 30 years, we have instructed lower courts to vacate any decision on the merits of an
action that has become moot prior to a resolution of the case in this Court. United States v. Munsingwear, Inc., 340 U.
S. 36 (1950). The Court has required such decisions to be vacated in order to "prevent a judgment, unreviewable
because of mootness, from spawning any legal consequences." Id. at 340 U. S. 41. It is even more imperative that this
Court invoke this procedure to ensure that resolution of a "political question," which should not have been decided by a
lower court, does not "spawn any legal consequences." An Art. III court's resolution of a question that is "political" in
character can create far more disruption chanroblesvirtualawlibrary

Page 444 U. S. 1006

among the three coequal branches of Government than the resolution of a question presented in a moot controversy.
Since the political nature of the questions presented should have precluded the lower courts from considering or
deciding the merits of the controversy, the prior proceedings in the federal courts must be vacated, and the complaint
dismissed.

[Footnote 2/1]

As observed by Chief Judge Wright in his concurring opinion below:

"Congress has initiated the termination of treaties by directing or requiring the President to give notice of termination,
without any prior presidential request. Congress has annulled treaties without any presidential notice. It has conferred
on the President the power to terminate a particular treaty, and it has enacted statutes practically nullifying the domestic
effects of a treaty and thus caused the President to carry out termination. . . ."

"Moreover, Congress has a variety of powerful tools for influencing foreign policy decisions that bear on treaty
matters. Under Article I, Section 8 of the Constitution, it can regulate commerce with foreign nations, raise and support
armies, and declare war. It has power over the appointment of ambassadors and the funding of embassies and
consulates. Congress thus retains a strong influence over the President's conduct in treaty matters."

"As our political history demonstrates, treaty creation and termination are complex phenomena rooted in the dynamic
relationship between the two political branches of our government. We thus should decline the invitation to set in
concrete a particular constitutionally acceptable arrangement by which the President and Congress are to share treaty
termination."

App. to Pet. for Cert. 44A-45A (footnotes omitted).

[Footnote 2/2]

This Court, of course, may not prohibit state courts from deciding political questions, any more than it may prohibit
them from deciding questions that are moot, Doremus v. Board of Education, 342 U. S. 429, 342 U. S. 434 (1952), so
long as they do not trench upon exclusively federal questions of foreign policy. Zschernig v. Miller, 389 U. S. 429, 389
U. S. 441 (1968).

MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE joins, dissenting in part.

129
In my view, the time factor and its importance are illusory; if the President does not have the power to terminate the
treaty (a substantial issue that we should address only after briefing and oral argument), the notice of intention to
terminate surely has no legal effect. It is also indefensible, without further study, to pass on the issue of justiciability or
on the issues of standing or ripeness. While I therefore join in the grant of the petition for certiorari, I would set the
case for oral argument and give it the plenary consideration it so obviously deserves.

MR. JUSTICE BRENNAN, dissenting.

I respectfully dissent from the order directing the District Court to dismiss this case, and would affirm the judgment of
the Court of Appeals insofar as it rests upon the President's well established authority to recognize, and withdraw
recognition from, foreign governments. App. to Pet. for Cert. 27A-29A.

In stating that this case presents a nonjusticiable "political question," MR. JUSTICE REHNQUIST, in my view,
profoundly misapprehends the political question principle as it applies to matters of foreign relations. Properly
understood, the political question doctrine restrains courts from reviewing an exercise of foreign policy judgment by
the coordinate political branch to which authority to make that judgment has been "constitutional[ly] commit[ted]." 369
U. S. 211-213 (1962). But the doctrine does not pertain when a court is faced with the antecedent question whether a
particular branch has been constitutionally designated as the repository of political decisionmaking power. Cf. Powell
v. McCormack,@ 395 U. S. 486, 395 U. S. 519-521 (1969). The issue of decisionmaking authority must be resolved as
a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts.

The constitutional question raised here is prudently answered in narrow terms. Abrogation of the defense treaty with
Taiwan was a necessary incident to Executive recognition of the Peking Government, because the defense treaty was
predicated upon the now-abandoned view that the Taiwan Government was the only legitimate political authority in
China. Our cases firmly establish that the Constitution commits to the President alone the power to recognize, and
withdraw recognition from, foreign regimes. See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 376 U. S. 410
(1964); Baker v. Carr, supra, at 369 U. S. 212; United States v. Pink, 315 U. S. 203, 315 U. S. 228-230 (1942). That
mandate being clear, our judicial inquiry into the treaty rupture can go no further. See Baker v. Carr, supra, at 369 U. S.
212; United States v. Pink, supra, at 315 U. S. 229.

130
JEAN L. ARNAULT, petitioner, vs. LEON NAZARENO, Sergeant-at-Arms, Philippine Senate, and EUSTAQUIO
BALAGTAS, Director of Prisons, respondents.
1. CONSTITUTIONAL LAW; POWER OF EITHER HOUSE OF CONGRESS TO CONDUCT AN INQUIRY.-The
power of inquiry, with process to enforce it, is an essential and appropriate auxiliary to the legislative function.
2. ID.; RANGE OF LEGISLATIVE INQUIRY.-The Congress of the Philippines has a wider range of legislative field
than either the Congress of the United States or a State Legislature, and the field of inquiry into which it may enter is
also wider. It is difficult to define any limits by which the subject matter of its inquiry can be bounded. Suffice it to say
that it must be coextensive with the range of legislative power.
3. ID.; POWER OF EITHER HOUSE OF CONGRESS TO PUNISH A WITNESS FOR CONTEMPT.-No person can
be punished for contumacy as a witness before either House unless his testimony is required in a matter into which that
House has jurisdiction to inquire.
4. ID.; ID.-Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, the
invesgating committee has the power to require a witness to answer any question pertinent to the subject of the inquiry,
subject of course to his constitutional privilege against self-incrimination.
5. ID.; ID.; MATERIALITY OF THE QUESTION.-The materiality of a question that may be propounded to a witness
is determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or
possible legislation.
6. ID.; ID.; POWER OF THE COURT TO PASS UPON MATERIALITY.-Where the immateriality of the information
sought by the legislative body from a witness is relied upon to contest its jurisdiction, the Court is in duty bound to pass
upon the contention. Although the legislative body has the power to make the inquiry, the Court is empowered to
correct a clear abuse of discretion in the exercise of that power.
7. ID.; LACK OF POWER OF THE COURT TO INTERFERE WITH LEGISLATIVE ACTION.-Since the Court has
no power to determine what legislation to approve or not to approve, it cannot say that the information sought from a
witness which is material to the subject of the legislative inquiry is immaterial to any proposed or possible legislation.
It is not within the province of the Court to determine or imagine what legislative measures Congress may take after the
completion of the legislative investigation.
8. ID.; AUTHORITY OF EITHER HOUSE OF CONGRESS TO COMMIT A WITNESS FOR CONTEMPT
BEYOND PERIOD OF LEGISLATIVE SESSION.-There is no sound reason to limit the power of the legislative body
to punish for contempt to the end of every session and not to the end of the last session terminating the existence of that
body. While the existence of the House of Representatives is limited to four years, that of the Senate is not so limited.
The Senate is a continuing body which does not cease to exist upon the periodical dissolution of the Congress or of the
House of Representatives. There is no limit as to time to the Senate's power to punish for contempt in cases where that
power may constitutionally be exerted.
9. ID.; PRIVILEGE AGAINST SELF-INCRIMINATION; REFUSAL OF WITNESS TO ANSWER.-Testimony
which is obviously false or evasive is equivalent to a refusal to testify and is punishable as contempt, assuming that a
refusal to testify would be so punishable.
10. ID.; ID.; POWER OF COURT TO DETERMINE WHETHER QUESTION IS INCRIMINATORY.-It is not
enough for the witness to say that the answer will incriminate him, as he is not the sole judge of his liability. The
danger of self incrimination must appear reasonable and real to the court, from all the circumstances, and from the
whole case, as well as from his general conception of the relations of the witness. Upon the facts thus developed, it is
the province of the court to determine whether a direct answer to a question may criminate or not. The witness cannot
assert his privilege by reason of some fanciful excuse, for protection against an imaginary danger, or to secure
immunity to a third person.
11. ID.; RIGHT AND OBLIGATION OF A CITIZEN.-It is the duty of every citizen to give frank, sincere, and truthful
testimony before a competent authority. His constitutional privilege against self-incrimination, unless clearly
established, must yield to that duty. When a specific right and a specific obligation conflict with each other, and one is
doubtful or uncertain while the other is clear and imperative, the former must yield to the latter. The right to live is one
of the most sacred that the citizen may claim, and yet the state may deprive him of it if he violates his corresponding
obligation to respect the life of others.
ORIGINAL ACTION in the Supreme Court. Habeas corpus.
The facts are stated in the opinion of the Court.
J. C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner.
Solicitor General Felix Bautista Angelo, Lorenzo Sumulong,
Lorenzo Tañada, and Vicente J. Francisco for respondents.
OZAETA, J.:
This is an original petition for habeas corpus to relieve the petitioner from his confinement in the New Bilibid Prison to
which he has been committed by virtue of a resolution adopted by the Senate on May 15, 1950, which reads as follows:
"Whereas, Jean L. Arnault refused to reveal the name of the person to whom he gave the P440,000, as well as answer
other pertinent questions related to the said amount; Now, therefore, be it
"Resolved, That for his refusal to reveal the name of the person to whom he gave the P440,000 Jean L. Arnault be
committed to the custody of the Sergeant-at Arms and imprisoned in the New Bilibid Prison, Muntinlupa, Rizal, until
discharged by further order of the Senate or by the special committee created by Senate Resolution No. 8, such

131
discharge to be ordered when he shall have purged the contempt by revealing to the Senate or to the said special
committee the name of the person to whom he gave the P440,000, as well as answer other pertinent questions in
connection therewith."
The facts that gave rise to the adoption of said resolution, insofar as pertinent here, may be briefly stated as follows:
In the latter part of October, 1949, the Philippine Government, through the Rural Progress Administration, bought two
estates known as Buenavista and Tambobong for the sums of P4,500,000 and P500,000, respectively. Of the first gum,
P1,000,000 was paid to Ernest H. Burt, a nonresident American, thru his attorney-in-fact in the Philippines, the
Associated Estates, Inc., represented by Jean L. Arnault, for alleged interest of the said Burt in the Buenavista, Estate.
The second sum of P500,000 was all paid to the same Ernest H. Burt through his other attorney-in-fact, the North
Manila Development Co., Inc., also represented by Jean L. Arnault, for the alleged interest of the said Burt in the
Tambobong Estate.
The original owner of the Buenavista Estate was the San Juan de Dios Hospital. The Philippine Government held a 25-
year lease contract on said estate, with an option to purchase it for P3,000,000 within the same period of 25 years
counted from January 1, 1939. The occupation republic of the Philippines purported to exercise that option by
tendering to the owner the sum of P3,000,000 and, upon its rejection, by depositing it in court on June 21, 1944,
together with the accrued rentals amounting to P324,000. Since 1939 the Government has remained in possession of
the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate for P5,000,000 to Ernest H. Burt, who
made a down payment of P10,000 only and agreed to pay P500,000 within one year and the remainder in annual
installments of P500,000 each, with the stipulation that failure on his part to make any of said payments would cause
the forfeiture of his down payment of P10,000 and would entitle the Hospital to rescind the sale to him. Aside from the
down payment of P10,000, Burt has made no other payment on account of the purchase price of said estate.
The original owner of the Tambobong Estate was the Philippine Trust Company. On May 14, 1946, the Philippine
Trust Company sold said estate for the sum of P1,200,000 to Ernest H. Burt, who paid P10,000 down and promised to
pay P90,000 within nine months and the balance of P1,100,000 in ten sucessive annual instalments of P110,000 each.
The nine-month period within which to pay the first intalment of P90,000 expired on February 14, 1947, without Burt's
having paid the said or any other amount then or afterwards. On September 4, 1947, the Philippine Trust Company
sold, conveyed, and delivered the Tambobong Estate to the Rural Progress Administration by an abolute deed of sale
in consideration of the sum of P750,000. On February 5, 1948, the Rural Progress Administration made, under article
1504 of the Civil Code, a notarial demand upon Burt for the resolution and cancellation of his contract of purchase with
the Philippine Trust Company due to his failure to pay the installment of P90,000 within the period of nine months.
Subsequently the Court of First Instance of Rizal ordered the cancellation of Burt's certificate of title and the issuance
of a new one in the name of the Rural Progress Administration, from which order he appealed to the Supreme Court.1
It was in the face of the antecedents sketched in the last three preceding paragraphs that the Philippine Government,
through the Secretary of Justice as Chairman of the Board of Directors of the Rural Progress Administration and as
Chairman of the Board of Directors of the Philippine National Bank, from which the money was borrowed,
accomplished the purchase of the two estates in the latter part of October, 1949, as stated at the outset.
On February 27, 1950, the Senate adopted its Resolution No. 8, which reads as follows:
"RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA AND THE
TAMBOBONG ESTATES DEAL.
"WHEREAS, it is reported that the Philippine Government, through the Rural Progress Administration, has bought the
Buenavista and the Tambobong Estates for the aggregate sum of five million pesos;
"WHEREAS, it is reported that under the decision of the Supreme Court dated October 31, 1949, the Buenavista Estate
could have been bought for three million pesos by virtue of a contract entered into between the San Juan de Dios
Hospital and Philippine Government in 1939;
"WHEREAS, it is even alleged that the Philippine Government did not have to purchase the Buenavista Estate because
the occupation government had made tender of payment in the amount of three million pesos, Japanese currency, which
fact is believed sufficient to vest title of ownership in the Republic of the Philippines pursuant to decisions of the
Supreme Court sustaining the validity of payments made in Japanese military notes during the occupation;
"WHEREAS, it is reported that the Philippine Government did not have to pay a single centavo for the Tambobong
Estate as it was already practically owned by the Philippine Government by virtue of a deed of sale from the Philippine
Trust Company dated September 3, 1947, for seven hundred and fifty thousand pesos, and by virtue of the recisission
of the contract through which Ernest H. Burt had an interest in the estate; Now, therefore, be it
"RESOLVED, That a Special Committee, be, as it hereby is, created, composed of five members to be appointed by the
President of the Senate to investigate the Buenavista and Tambobong Estate deals. It shall be the duty of the said
Committee to determine whether the said purchase was honest, valid, and proper and whether the price involved in the
deal was fair and just, the parties responsible therefor, and any other facts the Committee may deem proper in the
premises. Said Committee shall have the power to conduct public hearings; issue subpoena or subpoena duces tecum to
compel the attendance of witnesses or the production of documents before it; and may require any official or employee
of any bureau, office, branch, subdivision, agency, or instrumentality of the Government to assist or otherwise
cooperate with the Special Committee in the performance of its functions and duties. Said Committee shall submit its
report of findings and recommendations within two weeks from the adoption of this Resolution."

132
The special committee created by the above resolution called and examined various witnesses, among the most
important of whom was the herein petitioner, Jean L. Arnault. An intriguing question which the committee sought to
resolve was that involved in the apparent unnecessariness and irregularity of the Government's paying to Burt the total
sum of P1,500,000 for his alleged interest of only P20,000 in the two estates, which he seemed to have forfeited
anyway long before October, 1949. The committee sought to determine who were responsible for and who benefited
from the transaction at the expense of the Government.
Arnault testified that two checks payable to Burt aggregating P1,500,000 were delivered to him on the afternoon of
October 29, 1949; that on the same date he opened a new account in the name of Ernest H. Burt with the Philippine
National Bank in which he deposited the two checks aggregating P1,500,000; and that on the same occasion he drew on
said account two checks; one for P500,000, which he transferred to the account of the Associated Agencies, Inc., with
the Philippine National Bank, and another for P440,000 payable to cash, which he himself cashed. It was the desire of
the committee to determine the ultimate recipient of this sum of P440,000 that gave rise to the present case.
At first the petitioner claimed before the Committee:
"Mr. ARNAULT (reading from a note). Mr. Chairman, for questions involving the disposition of funds, I take the
position that the transactions were legal, that no laws were being violated, and that all requisites had been complied
with. Here also I acted in a purely functional capacity of representative, I beg to be excused from making answer which
might later be used against me. I have been assured that it is my constitutional right to refuse to incriminate myself, and
I am certain that the Honorable Members of this Committee, who, I understand, are lawyers, will see the justness of my
position."
At a subsequent session of the committee (March 16) Senator De Vera, a member of the committee, interrogated him as
follows:
"Senator DE VERA. Now these transactions, according to your own typewritten statement, were legal?
"Mr. ARNAULT. I believe so.
*********
"Senator DE VERA. And the disposition of that fund involved, according to your own statement, did not violate any
law?
"Mr. ARNAULT. I believe so.
**********
"Senator DE VERA. So that if the funds were disposed of in such a manner that no laws were violated, how is it that
when you were asked by the Committee to tell what steps you took to have this money delivered to Burt, you refused to
answer the questions, saying that it would incriminate you?
"Mr, ARNAULT. Because it violates the rights of a citizen to privacy in his dealings with other people.
***********
"Senator DE VERA. Are you afraid to state how the money was disposed of because you would be incriminated, or
you would be incriminating somebody?
"Mr. ARNAULT. I am not afraid; I simply stand on my privilege to dispose of the money that has been paid to me as a
result of a legal transaction without having to account for any use of it."
But when in the same session the chairman of the committee, Senator Sumulong, interrogated the petitioner, the latter
testified as follows:
"The CHAIRMAN. The other check of P440,000 which you also made an October 29, 1949, is payable to cash; and
upon cashing this P440,000 on October 29, 1949, what did you do with that amount?
"Mr. ARNAULT, I turned it over to a certain person.
"The CHAIRMAN. The whole amount of P440,000?
"Mr. ARNAULT. Yes.
"The CHAIRMAN. Who was that certain person to whom you delivered these P440,000 which you cashed on October
29, 1949?
"Mr. ARNAULT. I don't remember the name; he was a representative of Burt.
"The CHAIRMAN. That representative of Burt to whom you delivered the P440,000 was a Filipino?
"Mr. ARNAULT. I don't know.
"The CHAIRMAN. You do not reinember the name of that representative of Burt to whom. you delivered this big
amount of P440,000?
"Mr. ARNAULT. I am. not sure; I do not remember the name.
"The CHAIRMAN. That certain person who represented Burt to whom you deliverod this big amount on October 29,
1949, gave you a receipt for the amount?
"Mr. ARNAULT. NO.
"The CHAIRMAN. Neither did you ask for a receipt?
"Mr. ARNAULT. I didn't ask.
"The CHAIRMAN. And why did you give that certain person, representative of Burt, this big amount of P440,000
which forms part of the P1-1/2 million paid to Burt?
"Mr. ARNAULT. Because I have instructions to that effect.
"The CHAIRMAN. Who gave you the instruction?
"Mr. ARNAULT. Burt.

133
"The CHAIRMAN. Where is the instruction; was that in writing?
"Mr. ARNAULT. No.
"The CHAIRMAN. By cable?
"Mr. ARNAULT. No.
"The CHAIRMAN. In what form did you receive that instruction?
"Mr. ARNAULT. Verbal instruction.
"The CHAIRMAN. When did you receive this verbal instruction from Burt to deliver these P440,000 to a certain
person whose name you do -not like to reveal?
"Mr. ARNAULT. I have instruction to comply with the request of that person.
"The CHAIRMAN. NOW, you said that instruction to you by Burt was verbal?
"Mr. ARNAULT. Yes.
"The CHAIRMAN. When was that instruction given to you by Burt?
"Mr. ARNAULT. Long time ago.
"The CHAIRMAN. In what year did Burt give you that verbal instruction; when Burt was still here in the Philippines?
"Mr. ARNAULT. Yes.
"The CHAIRMAN. But at that time Burt already knew that he would receive the money?
"Mr. ARNAULT. No.
"The CHAIRMAN. In what year was that when Burt while he was here in the Philippines gave you the verbal
instruction?
"Mr. ARNAULT. In 1946.
"The CHAIRMAN. And what has that certain person done for Burt to merit receiving these P440,000?
"Mr. ARNAULT. I absolutely do not know.
"The CHAIRMAN. You do not know?
"Mr. ARNAULT. I do not know.
"The CHAIRMAN. Burt did not tell you when he gave you the verbal instruction why that certain person should
receive these P440,000?
"Mr. ARNAULT. He did not tell me.
"The CHAIRMAN. And Burt also authorized you to give this big amount to that certain person without receipt?
"Mr. ARNAULT. He told me that a certain person would represent him and where I could meet him.
"The CHAIRMAN. Did Burt know already that certain person as early as 1946?
"Mr. ARNAULT. I presume much before that.
"The CHAIRMAN. Did that certain person have any intervention in the prosecution of the two cases involving the
Buenavista and Tambobong estates?
"Mr. ARNAULT. Not that I know of.
"The CHAIRMAN. Did that certain person have anything to do with the negotiation for the settlement of the two
cases?
"Mr. ARNAULT. Not that I know of.
"The CHAIRMAN. Is that certain person related to any high government official?
"Mr. ARNAULT. No, I do not know.
"The CHAIRMAN. Why can you not tell us the name of that certain person?
"Mr. ARNAULT. Because I am not sure of his name; I cannot remember the name.
"The CHAIRMAN. When you gave that certain person that P440,000 on October 29, 1949, you know already that
person?
"Mr. ARNAULT. Yes, I have seen him several times.
"The CHAIRMAN. And the name of that certain person is a Filipino name?
"Mr. ARNAULT. I would say Spanish name.
"The CHAIRMAN. And how about his Christian name; is it also a Spanish name?
"Mr. ARNAULT. I am not sure; I think the initial is J.
"The CHAIRMAN. Did he have a middle name?
"Mr. ARNAULT. I never knew it.
"The CHAIRMAN. And how about his family name which according to your recollection is Spanish; can you
remember the first letter with which that family name begins?
Mr. ARNAULT. S, D or F.
"The CHAIRMAN. And what was the last letter of the family name?
"Mr. ARNAULT. I do not know.
"The CHAIRMAN. Have you seen that person again after you have delivered this P440,000?
"Mr. ARNAULT. Yes.
"The CHAIRMAN. Several times?
"Mr. ARNAULT. Two or three times.
"The CHAIRMAN. When was the last time that you saw that certain person?
"Mr. ARNAULT. Sometime in December.
"The CHAIRMAN. Here in Manila?

134
"Mr. ARNAULT. Yes.
"The CHAIRMAN. And in spite of the fact that you met that person two or three times, you never were able to find out
what was his name?
"Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta knows my name; of course, we have not done
business. Lots of people in Manila know me, but they don't know my name, and I don't know them. They say I am
'chiflado' because I don't know their names.
"The CHAIRMAN. That certain person is a male or a female?
"Mr. ARNAULT. He is a male.
"The CHAIRMAN. You are sure that he is a male at least?
"Mr. ARNAULT. Yes.
"The CHAIRMAN. How old was he?
"Mr. ARNAULT. Let us say 38 to 40 years, more or less.
"The CHAIRMAN. Can you give us, more or less, a description of that certain person?
What is his complexion: light, dark, or light brown?
"Mr. ARNAULT. He is like the gentleman there (pointing to Sen. Cabili), but smaller. He walks very straight, with
military bearing.
"The CHAIRMAN. Do you know the residence of that certain person to whom you gave the P440,000?
"Mr. ARNAULT. No.
"The CHAIRMAN. During these frequent times that you met that certain Person, you never came to know his
residence?
"Mr. ARNAULT. No, because he was coming to the office.
"The CHAIRMAN. How tall is that certain person?
"Mr. ARNAULT. Between 5-2 and 5-6."
On May 15, 1950, the petitioner was haled before the bar of the Senate, which approved and read to him the following
resolution:
"Be it resolved by the Senate of the Philippines in Session assembled:
"That Jean L. Arnault, now at the bar of the Senate, be arraigned for contempt consisting of contumacious acts
committed by him during the investigation conducted by the Special Committee created by Senate Resolution No. 8 to
probe the Tambobong and Buenavista estates deal of October 21, 1949, and that the President of the Senate propounded
to him the following interrogatories:
"1. What excuse have you for persistently refusing to reveal the name of the person to whom you gave the P440,000 on
October 29, 1949, a person whose name it is impossible for you not to remember not only because of the big amount of
money you gave to him without receipt, but also because by your own statements you knew him as early as 1946 when
General Ernest H. Burt was still in the Philippines, you made two other deliveries of money to him without receipt, and
the last time you saw him was in December 1949?"
Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written answer alleging that the questions were
incriminatory in nature and begging leave to be allowed to stand on his constitutional right not to be compelled to be a
witness against himself. Not satisfied with that written answer Senator Sumulong, over the objection of counsel for the
petitioner, propounded to the latter the following question:
"Sen. SUMULONG. During the investigation, when the Committee asked you for the name of that person to whom you
gave the P440,000, you said that you can [could] not remember his name. That was your reason then for refusing to
reveal the name of the person. Now, in the answer that you have just cited, you are refusing to reveal the name of that
person to whom you gave the P440,000 on the ground that your answer will be self -incriminating. Now, do I
understand from you that you are abandoning your former claim that you cannot remember the name of that person,
and that your reason now for your refusal to reveal the name of that person is that your answer might be self-
incriminating? In other words, the question is this: What is your real reason for refusing to reveal the name of that
person to whom you gave the P440,000: that you do not remember his name or that your answer would be self-
incriminating?
**********
"Mr. ORFNDAIN. Mr. President, we are begging for the rules of procedure that the accused should not be required to
testify unless he so desires.
"The PRESIDENT. It is the duty of the respondent to answer the question. The question is very clear. It does not
incriminate him.
**********
Mr. ARNAULT. I stand by every statement that I have made before the Senate Committee on the first, second, and
third hearings to which I was made to testify. I stand by the statements that I have made in my letter to this Senate of
May 2, 1950, in which I gave all the reasons that were in my powers to give, as requested.
I cannot change anything in those statements that I made because they represent the best that I can do, to the best of my
ability.
"The PRESIDENT. You are not answering the question. The answer has nothing to do with the question.
"Sen. SUMULONG. I would like to remind you, Mr. Arnault, that the reason that you gave during the investigation for
not revealing the name of the person to whom you gave the P440,000 is not the same reason that you are now alleging

135
because during the investigation you told us: 'I do not remember his name.' But, now, you are now saying: 'My answer
might incriminate me.' What is your real position?
"Mr. ARNAULT. I have just stated that I stand by my statements that I made at the first, second, and third hearings. I
said that I wanted to be excused from answering the question. I beg to be excused from making any answer that might
be incriminating in nature. However, in this answer, if the detail of not remembering the name of the person has not
been included, it is an oversight.
"Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question: Do you remember or not the name of the
person to whom you gave the P440,000?
"Mr. ARNAULT. I do not remember.
"Sen. SUMULONG. Now, if you do not remember the name of that person, how can you say that your answer might be
incriminating? If you do not remember his name, you cannot answer the question; so how could your answer be self
incriminating? What do you say to that?
"Mr. ARNAULT. This is too complicated for me to explain. Please, I do not see how to answer those questions. That is
why I asked I for a lawyer, so he can help me. I have no means of knowing what the situation is about. I have been in
jail 13 days without communication with the outside. How could I answer the question? I have no knowledge of legal
procedure or rule, of which I am completely ignorant.
***********
"Sen. SUMULONG. Mr. President, I ask that the question be answered.
"The PRESIDENT. The witness is ordered to answer the question. It is very clear. It does not incriminate the witness.
**********
"Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I beg to be excused from making further
answer, please.
"Sen. SUMULONG. In that mimeographed letter that you sent addressed to the President of the Senate, dated May 2,
1950, you stated there that you cannot reveal the name of the person to whom you gave the P440,000 because if he is a
public official you might render yourself liable for prosecution for bribery, and that if he is a private individual you
might render yourself liable for prosecution for slander. Why did you make those statements when you cannot even tell
us whether that person to whom you gave the P440,000 is a public official or a private individual? We are giving you
this chance to convince the Senate that all these allegations of yours that your answers might incriminate you are given
by you honestly or you are just trying to make a pretext for not revealing the information desired by the Senate.
"The PRESIDENT. YOU are ordered to answer the question.
Mr. ARNAULT. I do not even understand the question.
(The question is restated and explained.)
"Mr. ARNAULT. That letter of May 2 was prepared by a lawyer for me and I signed it. That is all I can say how I stand
about this letter. I have no knowledge myself enough to write such a letter, so I had to secure the help of a lawyer to
help me in my period of distress."
In that same session of the Senate before which the petitioner was called to show cause why he should not be adjudged
guilty of contempt of the Senate, Senator Sumulong propounded to the petitioner questions tending to elicit information
from him as to the identity of the person to whom he delivered the P440,000; but the petitioner refused to reveal it by
saying that he did not remember. The President of the Senate then propounded to him various questions concerning his
past activities dating as far back as when witness was seven years of age and ending as recently as the postliberation
period, all of which questions the witness answered satisfactorily. In view thereof, the President of the Senate also
made an attempt to elicit the desired information from the witness, as follows:
"The PRESIDENT. Now I am convinced that you have a good memory. Answer: Did you deliver the P440,000 as a
gift, or for any consideration?
"Mr. ARNAULT. I have said that I had instructions to deliver it to that person, that is all.
"The PRESIDENT. Was it the first time you saw that person?
"Mr. ARNAULT. I saw him various times, I have already said.
"The PRESIDENT. In spite of that, you do not have the least remembrance of the name of that person?
"Mr. ARNAULT. I cannot remember.
"The PRESIDENT. How is it that you do not remember events that happened a short time ago and, on the other hand,
you remember events that occurred during your childhood?
"Mr. ARNAULT. I cannot explain."
The Senate then deliberated and adopted the resolution of May 15 hereinabove quoted whereby the petitioner was
committed to the custody of the Sergeant-at-Arms and imprisoned until "he shall have purged the contempt by
revealing to the Senate or to the aforesaid Special Committee the name of the person to whom he gave the P440,000, as
well as answer other pertinent questions in connection therewith."
The Senate also adopted on the same date another resolution (No. 16), to wit:
"That the Special Committee created by Senate Resolution No. 8 be empowered and directed to continue its
investigation of the Tambobong and Buenavista Estates deal of October 21, 1949, more particularly to continue its
examination of Jean L. Arnault regarding the name of the person to whom he gave the P440,000 and other matters
related therewith."
The first session of the Second Congress was adjourned at midnight on May 18, 1950.

136
The case was argued twice before us. We have given it earnest and prolonged consideration because it is the first of its
kind to arise since the Constitution of the Republic of the Philippines was adopted. For the first time this Court is called
upon to define the power of either House of Congress to punish a person not a member for contempt; and we are fully
conscious that our pronouncements here will set an important precedent for the future guidance of all concerned.
Before discussing the specific issues raised by the parties, we deem it necessary to lay down the general principles of
law which form the background of those issues.
Patterned after the American system, our Constitution vests the powers of the Government in three independent but
coordinate Departments-Legislative, Executive, and Judicial. The legislative power is vested in the Congress, which
consists of the Senate and the House of Representatives. (Section 1, Article VI.) Each House may determine the rules
of its proceedings, punish its Members for disorderly behaviour, and, with the concurrence of two thirds of all its
Members, expel a Member, (Section 10, Article VI.) The judicial power is vested in the Supreme Court and in such
inferior courts as may be established by law. (Section 1, Article VIII.) Like the Constitution of the United States, ours
does not contain an express provision empowering either of the two Houses of Congress to punish nonmembers for
contempt. It may also be noted that whereas in the United States the legislative power is shared by and between the
Congress of the United States, on the one hand, and the respective legislatures of the different States, on the other-the
powers not delegated to the United States by the Constitution nor prohibited by it to States being reserved to the States,
respectively, or to the people-in the Philippines, the legislative power is vested in the Congress of the Philippines alone.
It may therefore be said that the Congress of the Philippines has a wider range of legislative field than the Congress of
the United States or any State Legislature.
Our form of government being patterned after the American system-the framers of our Constitution having drawn
largely from American institutions and practices-we can, in this case, properly draw also from American precedents in
interpreting analogous provisions of our Constitution, as we have done in other cases in the past.
Although there is no provision in the Constitution expressly investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively,
such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with
process to enforce it-is an essential and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended
to affect or change; and where the legislative body does not itself possess the requisite information which is not
infrequently true-recourse must be had to others who do possess it. Experience has shown that mere requests for such
information are often unavailing, and also that information which is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what is needed. (McGrain vs. Daugherty, 273 U. S., 135; 71 L. ed.,
580; 50 A. L. R., 1.) The fact that the Constitution expressly gives to Congress the power to punish its Members for
disorderly behaviour, does not by necessary implication exclude the power to punish for contempt any other person.
(Anderson vs. Dunn, 6 Wheaton, 204; 5 L. ed., 242.)
But no person can be punished for contumacy as a witness before either House, unless his testimony is required in a
matter into which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.)
Since, as we have noted, the Congress of the Philippines has a wider range of legislative field than either the Congress
of the United States or a State Legislature, we think it is correct to say that the field of inquiry into which it may enter is
also wider. It would be difficult to define any limits by which the subject matter of its inquiry can be bounded. It is not
necessary for us to do so in this case. Suffice it to say that it must be coextensive with the range of the legislative
power.
In the present case the jurisdiction of the Senate, thru the Special Committee created by it, to investigate the Buenavista
and Tambobong estates deal is not challenged by the petitioner; and we entertain no doubt as to the Senate's authority
to do so and as to the validity of Resolution No. 8 hereinabove quoted. The transaction involved a questionable and
allegedly unnecessary and irregular expenditure of no less than P5,000,000 of public funds, of which Congress is the
constitutional guardian. It also involved government agencies created by Congress and officers whose positions it is
within the power of Congress to regulate or even abolish. As a result of the yet uncompleted investigation, the
investigating committee has recommended and the Senate has approved three bills (1) prohibiting the Secretary of
Justice or any other department head from discharging functions and exercising Powers other than those attached to his
own office, without previous congressional authorization; (2) prohibiting brothers and near relatives of any President of
the Philippines from intervening directly or indirectly and in whatever capacity in transactions in which the
Government is a party, more particularly where the decision lies in the hands of executive or administrative officers
who are appointees of the President; and (3) providing that purchases of the Rural Progress Administration of big
landed estates at a price of P100,000 or more, and loans guaranteed by the Government involving P100,000 or more,
shall not become effective without previous congressional confirmation.1
We shall now consider and pass upon each of the questions raised by the petitioner in support of his contention that his
commitment is unlawful.
First. He contends that the Senate has no power to punish him for contempt for refusing to reveal the name of the
person to whom he gave the P440,000, because such information is immaterial to, and will not serve, any intended or
purported legislation and his refusal to answer the question has not embarrassed, obstructed, or impeded the legislative
process. It is argued that since the investigating committee has already rendered its report and has made all its
recommendations as to what legislative measures should be taken pursuant to its findings, there is no necessity to force

137
the petitioner to give the information desired other than that mentioned in its report, to wit: "In justice to Judge Quirino
and to Secretary Nepomuceno, this atmosphere of suspicion that now pervades the public mind must be dissipated, and
it can only be done if appropriate steps are taken by the Senate to compel Arnault to stop pretending that he cannot
remember the name of the person to whom he gave the P440,000 and answer questions which will definitely establish
the identity of that person * * *." Senator Sumulong, Chairman of the Committee, who appeared and argued the case
for the respondents, denied that that was the only purpose of the Senate in seeking the information from the witness. He
said that the investigation had not been completed, because, due to the contumacy of the witness, his committee had not
yet determined the parties responsible for the anomalous transaction as required by Resolution No. 8; that, by
Resolution No. 16, his committee was empowered and directed to continue its investigation, more particularly to
continue its examination of the witness regarding the name of the person to whom he gave the P440,000 and other
matters related therewith; that the bills recommended by his committee had not been approved by the House and might
not be approved pending the completion of the investigation; and that those bills were not necessarily all the measures
that Congress might deem it necessary to pass after the investigation is finished.
Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, we think the
investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject of
course to his constitutional right against self-incrimination. The inquiry, to be within the jurisdiction of the legislative
body to make, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to
legislate, or to expel a Member; and every question which the investigator is empowered to coerce a witness to answer
must be material or pertinent to the subject of the inquiry or investigation. So a witness may not be coerced to answer a
question that obviously has no relation to the subject of the inquiry. But from this it does not follow that every question
that may be propounded to a witness must be material to any proposed or possible legislation. In other words, the
materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect
relation to any proposed or possible legislation. The reason is, that the necessity or lack of necessity for legislative
action and the form and character of the action itself are determined by the sum total of the information to be gathered
as a result of the investigation, and not by a fraction of such information elicited from a single question.
In this connection, it is suggested by counsel for the respondents that the power of the Court is limited to determining
whether the legislative body has jurisdiction to institute the inquiry or investigation; that once that jurisdiction is
conceded, this Court cannot control the exercise of that jurisdiction or the use of Congressional discretion; and, it is
insinuated, that ruling of the Senate on the materiality of the question propounded to the witness is not subject to
review by this Court under the principle of the separation of powers. We have to qualify this proposition. As was said
by the Court of Appeals of New York: "We are bound to presume that the action of the legislative body was with a
legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended."
(People ex rel. McDonald vs. Keeler, 99 N. Y., 463; 52 Am. Rep., 49; 2 N. E., 615, quoted with approval by the
Supreme Court of the United States in McGrain vs. Daugherty, supra.) Applying this principle to the question at hand,
we may concede that the ruling of the Senate on the materiality of the information sought from the witness is presumed
to be correct. But, as noted by the Supreme Court of the United States in the said case of McGrain vs. Daugherty, it is a
necessary deduction from the decision in Re Chapman, 41 L. ed., 1154, that where the questions are not pertinent to the
matter under inquiry a witness rightfully may refuse to answer. So are of the opinion that where the alleged
immateriality of the information sought by the legislative body from a witness is relied upon to contest its jurisdiction,
the court is in duty bound to pass upon the contention. The fact that the legislative body has jurisdiction or the power to
make the inquiry would not preclude judicial intervention to correct a clear abuse of discretion in the exercise of that
power.
Applying the criterion laid down in the last two preceding paragraphs to the resolution of the issue under consideration,
we find that the Question for the refusal to answer which the petitioner was held in contempt by the Senate is pertinent
to the matter under inquiry. In fact, this is not and cannot be disputed. Senate Resolution No. 8, the validity of which is
not challenged by the petitioner, requires the Special Committee, among other things, to determine the parties
responsible for the Buenavista and Tambobong estates deal, and it is obvious that the name of the person to whom the
witness gave the P440,000 involved in said deal is pertinent to that determinationit is in fact the very thing sought to be
determined. The contention is not that the qeustion is impertinent to the subject of the inquiry but that it has no relation
or materiality to any proposed legislation. We have already indicated that it is not necessary for the legislative body to
show that every question propounded to a witness is material to any proposed or possible legislation; what is required is
that it be pertinent to the matter under inquiry.
The Court cannot determine, any more than it can direct Congress, what legislation to approve or not to approve; that
would be an invasion of the legislative prerogative. The Court, therefore, may not say that the information sought from
the witness which is material to the subject of the legislative inquiry is immaterial to any proposed or possible
legislation.
It is said that the Senate has already approved the three bills recommended by the Committee as a result of the
uncompleted investigation and that there is no need for it to know the name of the person to whom the witness gave the
P440,000. But aside from the fact that those bills have not yet been approved by the lower house and by the President
and that they may be withdrawn or modified if after the inquiry is completed they should be found unnecessary or
inadequate, there is nothing to prevent the Congress from approving other measures it may deem necessary after
completing the investigation. We are not called upon, nor is it within our province, to determine or imagine what those

138
measures may be. And our inability to do so is no reason for overruling the question propounded by the Senate to the
witness.
The case of Re Chapman, 166 U. S., 661; 41 L. ed., 1154, is in point here. The inquiry there in question was conducted
under a resolution of the Senate and related to charges, published in the press, that senators were yielding to corrupt
influences in considering a tariff bill then before the Senate and were speculating in stocks the value of which would be
affected by pending amendments to the bill. Chapman, a member of a firm of stock brokers dealing in the stock of the
American Sugar Refining Company, appeared before the committee in response to a subpoena and was asked, among
others, the following questions:
"Had the firm, during the month of March, 1894, bought or sold any stock or securities, known as sugar stocks, for or
in the interest, directly or indirectly, of any United States senator?
"Was the said firm at that time carrying any sugar stock for the benefit of, or in the interest, directly or indirectly, of
any United Senate senator?"
He refused to answer those questions and was prosecuted under an Act of Congres's for contempt of the Senate. Upon
being convicted and sent to jail he petitioned the Supreme Court of the United States for a writ of habeas corpus. One
of the questions decided by the Supreme Court of the United States in that case was whether the committee had the
right to compel the witness to answer said questions, and the Court held that the committee did have such right, saying:
"The questions were undoubtedly pertinent to the subject-matter of the inquiry. The resolution directed the committee
to inquire 'whether any senator has been, or is, speculating in what are known as sugar stocks during the consideration
of the tariff bill now before the Senate.' What the Senate might or might not do upon the facts when ascertained, we
cannot say, nor are we called upon to inquire whether such ventures might be defensible, as contended in argument, but
it is plain that negative answers would have cleared that body of what the Senate regarded as offensive imputations,
while affirmative answers might have led to further action on the part of the Senate within its constitutional powers."
(Italics ours.)
It may be contended that the determination of the parties responsible for the deal is incumbent upon the judicial rather
than upon the legislative branch. But we think there is no basis in fact or in law for such assumption. The petitioner has
not challenged the validity of Senate Resolution No. 8, and that resolution expressly requires the committee to
determine the parties responsible for the deal. We are bound to presume that the Senate has acted in the due
performance of its constitutional function in instituting the inquiry, if the act is capable of being so construed. On the
other hand, there is no suggestion that the judiciary has instituted an inquiry to determine the parties responsible for the
deal. Under the circumstances of the case, it appearing that the questioned transaction was affected by the head of the
Department of Justice himself, it is not reasonable to expect that the Fiscal or the Court of First Instance of Manila will
take the initiative to investigate and prosecute the parties responsible for the deal until and unless the Senate shall have
determined who those parties are and shall have taken such measures as may be within its competence to take to redress
the wrong that may have been committed against the people as a result of the transaction. As we have said, the
transaction involved no less than P5,000,000 of public funds. That certainly is a matter of public concern which it is the
duty of the constitutional guardian of the treasury to investigate.
If the subject of investigation before the committee is within the range of legitimate legislative inquiry and the
proposed testimony of the witness called relates to that subject, obedience to its process may be enforced by the
committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S. E., 670; 40 Ann. Cas. [1916-B.], 1115.)
The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied upon by the petitioner, is not applicable here.
In that case the inquiry instituted by the House of Representatives of the United States related to a private real-estate
pool or partnership in the District of Columbia. Jay Cook & Company had had an interest in the pool but had become
bankrupts, and their estate was in course of administration in a federal bankruptcy court in Pennsylvania. The United
States was one of their creditors. The trustee in the bankruptcy proceeding had effected a settlement of the bankrupts'
interest in the pool, and of course his action was subject to examination and approval or disapproval by the bankruptcy
court. Some of the creditors, including the United States, were dissatisfied with the settlement. The resolution of the
House directed the Committee "to inquire into the nature and history of said real-estate pool and the character of said
settlement, with the amount of property involved, in which Jay Cooke & Co. were interested, and the amount paid or to
be paid in said settlement, with power to send for persons and papers, and report to this House." The Supreme Court of
the United States, speaking thru Mr. Justice Miller, pointed out that the resolution contained no suggestion of
contemplated legislation; that the matter was one in respect of which no valid legislation could be had; that the
bankrupts' estate and the trustee's settlement were still pending in the bankruptcy court; and that the United States and
other creditors were free to press 'their claims in that proceeding. And on these grounds the court held that in
undertaking the investigation "the House of Representatives not only exceeded the limit of its own authority, but
assumed a power which could only be properly exercised by another branch of the government, because the power was
in its nature clearly judicial." The principles announced and applied in that case are: that neither House of Congress
possesses a "general power of making inquiry into the private affairs of the citizen"; that the power actually possessed
is limited to inquiries relating to matters of which the particular House has jurisdiction, and in respect of which it
rightfully may take other action; that if the inquiry relates to a matter wherein relief or redress could be had only by
judicial proceeding, it is not within the range of this power, but must be left to the courts, conformably to the
constitutional separation of governmental powers.

139
That case differs from the present case in two important respects: (1) There the court found that the subject of the
inquiry, which related to a private real-estate pool or partnership, was not within the jurisdiction of either House of
Congress; while here it is not disputed that the subject of the inquiry, which relates to a transaction involving a
questionable expenditure by the Government of P5,000,000 of public funds, is within the jurisdiction of the Senate. (2)
There the claim of the Government as a creditor of Jay Cooke & Company, which had had an interest in the pool, was
pending adjudication by the court; while here the interposition of the judicial power on the subject of the inquiry cannot
be expected, as we have pointed out above, until after the Senate shall have determined who the parties responsible are
and shall have taken such measures as may be within its competence to take to redress the wrong that may have been
committed against the people as a result of the transaction.
It is interesting to note that the decision in the case of Kilbourn vs. Thompson has evoked strong criticisms from legal
scholars. (See Potts, Power of Legislative Bodies to Punish for Contempt [1926], 74 U. Pa. L. Rev., 692-699; James M.
Landis, Constitutional Limitations on the Congressional Power of Investigation [1926], 40 Harvard L. Rev., 153, 214-
220.) We quote the following from Professor Landis' criticism: "Mr. Justice Miller saw the case purely as an attempt by
the House to secure to the Government certain priority rights as creditor of the bankrupt concern. To him it assumed the
character of a lawsuit between the Government and Jay Cooke & Co., with the Government, acting through the House,
attempting to override the orderliness of established procedure and thereby prefer a creditors' bill not before the courts
but before Congress. That bankruptcy proceedings had already been instituted against Jay Cooke & Co. in a federal
court gave added impetus to such a conception. The House was seeking to oust a court of prior acquired jurisdiction by
an extraordinary and unwarranted assumption of 'judicial power'. The broader aspect of the investigation had not been
disclosed to the Court. That Jay Cooke & Co.s indebtedness and the particular funds in question were only part of the
great administrative problem connected with the use and disposition of public monies, that the particular failure was of
consequence mainly in relation to the security demanded for all government deposits, that the facts connected with one
such default revealed the possibility of other and greater maladministration, such considerations had not been put
before the Court. Nor had it been acquainted with the every-day nature of the particular investigation and the powers
there exerted by the House, powers whose exercise was customary and familiar in legislative practice. Instead of
assuming the character of an extraordinary judicial proceeding, the inquiry, placed in its proper background, should
have been regarded as a normal and customary part of the legislative process. Detailed definiteness of legislative
purpose was thus made the demand of the Court in Kilbourn vs. Thompson. But investigators cannot foretell the results
that may be achieved. The power of Congress to exercise control over a real estate pool is not a matter for abstract
speculation but one to be determined only after an exhaustive examination of the problem. Relationship, and not their
possibilities, determine the extent of congressional power. Constitutionality depends upon such disclosures. Their
presence, whether determinative of legislative or judicial power, cannot be relegated to guesswork. Neither Congress
nor the Court can predict, prior to the event, the result of investigation."
The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U. S., 521; 61 L. ed., 881. The question there
was whether the House of Representatives exceeded its power in punishing, as for contempt of its authority, the District
Attorney of the Southern District of New York, who had written, published, and sent to the chairman of one of its
committees an ill-tempered and irritating letter respecting the action and purposes of the committee in interfering with
the investigation by the grand jury of alleged illegal activities of a member of the House of Representatives. Power to
make inquiries and obtain evidence by compulsory process was not involved. The court recognized distinctly that the
House of Representatives had implied power to punish a person not a member for contempt, but held that its action in
this instance was without constitutional justification. The decision was put on the ground that the letter, while offensive
and vexatious, was not calculated or likely to affect the House in any of its proceedings or in the exercise of any of its
functions. This brief statement of the facts and the issues decided in that case is sufficient to show the inapplicability
thereof to the present case. There the contempt involved consisted in the district attorney's writing to the chairman of
the committee an offensive and vexatious letter, while here the contempt involved consists in the refusal of the witness
to answer questions pertinent to the subject of an inquiry which the Senate has the power and jurisdiction to make. But
in that case it was recognized that the House of Representatives has implied power to punish a person not a member for
contempt. In that respect the case is applicable here in favor of the Senate's (and not of the petitioner's) contention.
Second. It is next contended for the petitioner that the Senate lacks authority to commit him for contempt for a term
beyond its period of legislative session, which ended on May 18, 1950. This contention is based on the opinion of Mr.
Justice Malcolm, concurred in by Justices Street and Villa-Real, in the case of Lopez vs. De los Reyes (1930), 55 Phil.,
170. In that case it appears that on October 23, 1929, Candido Lopez assaulted a member of the House of
Representatives while the latter was going to the hall of the House of Representatives to attend the session which was
then about to begin, as a result of which assault said representative was unable to attend the sessions on that day and
those of the two days next following by reason of the threats which Candido Lopez made against him. By resolution of
the House adopted November 6, 1929, Lopez was declared guilty of contempt of the House of Representatives and
ordered punished by confinement in Bilibid Prison for a period of twentyfour hours. That resolution was not complied
with because the session of the House of Representatives adjourned at midnight on November 8, 1929, and was
reiterated at the next session on September 16, 1930. Lopez was subsequently arrested, whereupon he applied for the
writ of habeas corpus in the Court of First Instance of Manila, which denied the application. Upon appeal to the
Supreme Court, six justices voted to grant the writ: Justices Malcolm, Street, and Villa-Real, on the ground that the
term of imprisonment meted out to the petitioner could not legally be extended beyond the session of the body in which

140
the contempt occurred; and Justices Johns, Villamor, and Ostrand, on the ground that the Philippine Legislature had no
power to punish for contempt because it was a creature merely of an Act of the Congress of the United States and not
of a Constitution adopted by the people. Chief Justice Avanceña, Justice Johnson, and Justice Romualdez wrote
separate opinions, concurring with Justices Malcolm, Street, and Villa-Real, that the Legislature had inherent power to
punish for contempt but dissenting from the opinion that the order of commitment could only be executed during the
particular session in which the act of contempt was committed.
Thus, on the question under consideration, the Court was equally divided and no decisive pronouncement was made.
The opinion of Mr. Justice Malcolm is based mainly on the following passage in the case of Anderson vs. Dunn, supra:
"And although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its
adjournment or periodical dissolution. It follows that imprisonment must terminate with that adjournment."
as well as on the following quotation from Marshall vs. Gordon, supra:
"And the essential nature of the power also makes clear the cogency and application of the two limitations which were
expressly pointed out in Anderson vs. Dunn, supra, that is, that the power even when applied to subjects which justified
its exercise is limited to imprisonment and such imprisonment may not be extended beyond the session of the body in
which the contempt occurred."
Interpreting the above quotations, Chief Justice Avanceña held:
"From this doctrine it follows, in my judgment, that the imposition of the penalty is limited to the existence of the
legislative body, which ceases to function upon its final periodical dissolution. The doctrine refers to its existence and
not to any particular session thereof. This must be so, inasmuch as the basis of the power to impose such penalty is the
right which the Legislature has to self-preservation, and which right is enforceable during the existence of the
legislative body. Many causes might be conceived to constitute contempt to the Legislature, which would continue to
be a menace to its preservation during the existence of the legislative body against which contempt was committed.
"If the basis of the power of the legislature to punish for contempt exists while the legislative body exercising it is in
Session, then that power and the exercise thereof must pertforce continue until its final adjournment and the election of
its successor."
Mr. Justice Johnson's more elaborate opinion, supported by quotations from Cooley's Constitutional Limitations and
from Jefferson's Manual, is to the same effect. Mr. Justice Romualdez said: "In my opinion, where, as in the case before
us, the members composing the legislative body against which the contempt was committed have not yet completed
their three-year term, the House may take action against the petitioner herein."
We note that the quotations from Anderson vs. Dunn and Marshall vs. Gordon relied upon by Justice Malcolm are
obiter dicta. Anderson vs. Dunn was an action of trespass against the Sergeant at-Arms of the House of Representatives
of the United States for assault and battery and false imprisonment. The plaintiff had been arrested for contempt of the
House, brought before the bar of the House, and reprimanded by the Speaker, and then discharged from custody., The
question as to the duration of the penalty was not involved in that case. The question there presented was "whether the
House of Representatives can take cognizance of contempts committed against themselves, under any circumstances."
The court there held that the House of Representatives had the power to punish for contempt, and affirmed the
judgment of the lower court in favor of the defendant. In Marshall vs. Gordon, the question presented was whether the
House had the power under the Constitution to deal with the conduct of the district attorney in writing a vexatious letter
as a contempt of its authority, and to inflict punishment upon the writer for such contempt as a matter of legislative
power. The court held that the House had no such power because the writing of the letter did not obstruct the
performance of legislative duty and did not endanger the preservation of the power of the House to carry out its
legislative authority. Upon that ground alone, and not because the House had adjourned, the court ordered the discharge
of the petitioner from custody.
The case where the question was squarely decided is McGrain vs. Daugherty, supra. There it appears that the Senate
had adopted a resolution authorizing and directing a select committee of five senators to investigate various charges of
misfeasance and nonfeasance in the Department of Justice after Attorney General Harry M. Daugherty became its
supervising head. In the course of the investigation the committte caused to be served on Mally S. Daugherty, brother
of Harry 31. Daugherty and president of the Midland National Bank of Washington Court House, Ohio, a subpoena
commanding him to appear before it for the purpose of giving testimony relating to the subject under consideration.
The witness failed to appear without offering any excuse for his failure. The committee reported the matter to the
Senate and the latter adopted a resolution, "That the President of the Senate pro tempore issue his warrant commanding
the Sergeant-at-Arms or his deputy to take into custody the body of the said AT. S. Daugherty wherever found, and to
bring the said M. S. Daugherty before the bar of the Senate, then and there to answer such questions pertinent to the
matter under inquiry as the Senate may order the President of the Senate pro tempore to propound; and to keep the said
M. S. Daugherty in custody to await the further order of the Senate." Upon being arrested, the witness petitioned the
federal court in Cincinnati for a writ of habeas corpus. The federal court granted the writ and discharged the witness on
the ground that the Senate, in directing the investigation and in ordering the arrest, exceeded its power under the
Constitution. Upon appeal to the Supreme Court of the United States, one of the contentions of the witness was that the
case had become moot because the investigation was ordered and the committee was appointed during the Sixty-eighth
Congress, which expired on March 4, 1926. In overruling the contention, the court said:
"* * * The resolution ordering the investigation in terms limited the committee's authority to the period of the Sixty-
eight Congress; but this apparently was changed by a later and amendatory resolution authorizing the committee to sit

141
at such times and places as it might deem advisable or necessary. It is said in Jefferson's Manual: 'Neither House can
continue any portion of itself in any parliamentary function beyond the end of the session without the consent of the
other two branches. When done, it is by a bill constituting them commissioners for the particular purpose.' But the
context shows that the reference is to the two houses of Parliament when adjourned by prorogation or dissolution by the
King. The rule may be the same with the House of Representatives whose members are all elected for the period of a
single Congress; but it cannot well be the same with the Senate, which is a continuing body whose members are all
elected for a term of six years and so divided into classes that the seats of one third only become vacant at the end of
each Congress, two thirds always continuing into the next Congress, save as vacancies may occur through death or
resignation.
"Mr. Hinds in his collection of precedents, says: 'The Senate, as a continuing body, may continue its committees
through the recess following the expiration of a Congress;' and, after quoting the above statement from Jefferson's
Manual, he says: 'The Senate, however, being a continuing body, gives authority to its committees during the recess
after the expiration of a Congress.' So far as we are advised the select committee having this investigation in charge has
neither made a final report nor been discharged; nor has it been continued by an affirmative order. Apparently its
activities have been suspended pending the decision of this case. But, be this as it may, it is certain that the committee
may be continued or revived now by motion to that effect, and, if continued or revived, will have all its orginal powers.
This being so, and the Senate being a continuing body, the case cannot be said to have become moot in the ordinary
sense. The situation is measurably like that in Southern P. Terminal Co. vs. Interstate Commerce Commission, 219 U.
S., 498, 514-516; 55 L. ed., 310, 315, 316; 31 Sup. Ct. Rep., 279, where it was held that a suit to enjoin the
enforcement of an order of the Interstate Commerce Commission did not become moot through the expiration of the
order where it was capable of repetition by the Commission and was a matter of public interest. Our judgment may yet
be carried into effect and the investigation proceeded with from the point at which it apparently was interrupted by
reason of the habeas corpus proceedings. In these circumstances we think a judgment should be rendered as was done
in the case cited.
"What has been said requires that the final order in the District Court discharging the witness from custody be
reversed."
Like the Senate of the United States, the Senate of the Philippines is a continuing body whose members are elected for
a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always
continuing into the next Congress save as vacancies may occur thru death or resignation. Members of the House of
Representatives are all elected for a term of four years; so that the term of every Congress is four years. The Second
Congress of the Philippines was constituted on December 30, 1949, and will expire on December 30, 1953. The
resolution of the Senate committing the petitioner was adopted during the first session of the Second Congress, which
began on the fourth Monday of January and ended on May 18, 1950.
Had said resolution of commitment been adopted by the House of Representatives, we think it could be enforced until
the final adjournment of the last session of the Second Congress in 1953. We find no sound reason to limit the power of
a legislative body to punish for contempt to the end of every session and not to the end of the last session terminating
the existence of that body. The very reason for the exercise of the power to punish for contempt is to enable the
legislative body to perform its constitutional function without impediment or obstruction. Legislative functions may be
and in practice are performed during recess by duly constituted committees charged with the duty of performing
investigations or conducting hearing relative to any proposed legislation. To deny to such committees the power of
inquiry with process to enforce it would be to defeat the very purpose for which that power is recognized in the
legislative body as an essential and appropriate auxiliary to its legislative function. It is but logical to say that the power
of self-preservation is coexistent with the life to be preserved.
But the resolution of commitment here in question was adopted by the Senate, which is a continuing body and which
does not cease to exist upon the periodical dissolution of the Congress or of the House of Representatives. There is no
limit as to time to the Senate's power to punish for contempt in cases where that power may constitutionally be exerted
as in the present case.
Mere reflection upon the situation at hand convinces us of the soundness of this proposition. The Senate has ordered an
investigation of the Buenavista and Tambobong estates deal, which we have found it is within its competence to make.
That investigation has not been completed because of the refusal of the petitioner as a witness to answer certain
questions pertinent to the subject of the inquiry. The Senate has empowered the committee to continue the investigation
during the recess. By refusing to answer the questions, the witness has obstructed the performance by the Senate of its
legislative function, and the Senate has the power to remove the obstruction by compelling the witness to answer the
questions thru restraint of his liberty until he shall have answered them. That power subsists as long as the Senate,
which is a continuing body, persists in performing the particular legislative function involved. To hold that it may
punish the witness for contempt only during the session in which investigation was begun, would be to recognize the
right of the Senate to perform its function but at the same time to deny to it an essential and appropriate means for its
performance. Aside from this, if we 'should hold that the power to punish for contempt terminates upon the
adjournment of the session, the Senate would have to resume the investigation at the next and succeeding sessions and
repeat the contempt proceedings against the witness until the investigation is completed-an absurd, unnecessary, and
vexatious procedure, which should be avoided.

142
As against the foregoing conclusion it is argued for the petitioner that the power may be abusively and oppressively
exerted by the Senate which might keep the witness in prison for life. But we must assume that the Senate will not be
disposed to exert the power beyond its proper bounds. And if, contrary to this assumption, proper limitations are
disregarded, the portals of this Court are always open to those whose rights might thus be transgressed.
Third. Lastly, the petitioner invokes the privilege against self incrimination. He contends that he would incriminate
himself if he should reveal the name of the person to whom he gave the P440,000 because if that person be a public
official he (witness) might be accused of bribery, and if that person be a private individual the latter might accuse him
of oral defamation.
The ground upon which the witness' claim is based is too shaky, infirm, and slippery to afford him safety. At first he
told the Committee that the transactions were legal, that no laws were violated, and that all requisites had been
complied with; but at the same time he begged to be excused from making answers "which might later be used against
me." A little later he explained that although the transactions were legal he refused to answer questions concerning
them "because it violates the rights of a citizen to privacy in his dealings with other people. * * * I simply stand on my
privilege to dispose of the money that has been paid to me as a result of a legal transaction without having to account
for any use of it." But after being apparently convinced by the Committee that his position was untenable, the witness
testified that, without securing any receipt, he turned over the P440,000 to a certain person, a representative of Burt, in
compliance with Burt's verbal instruction made in 1946; that, as far as he know, that certain person had nothing to do
with the negotiations for the settlement of the Buenavista and Tambobong cases; that he had seen that person several
times before he gave him the P440,000 on October 29, 1949, and that since then he had seen him again two or three
times, the last time being in December, 1949, in Manila; that the person was a male, 39 to 40 years of age, between 5
feet, 2 inches and 5 feet, 6 inches in height. But the witness would not reveal the name of that person on these pretexts:
"I don't remember the name; he was a representative of Burt." "I am not 'sure; I don't remember the name."
We are satisfied that those answers of the witness to the important question, What is the name of that person to whom
you gave the P440,000? were obviously false. His insistent claim before the bar of the Senate that if he should reveal
the name he would incriminate himself, necessarily implied that he knew the name. Moreover, it is unbelievable that he
gave P440,000 to a person to him unknown.
"Testimony which is obviously false or evasive is equivalent to a refusal to testify and is punishable as contempt,
assuming that a refusal to testify would be so punishable." (12 Am. Jur., sec. 15, Contempt, pp. 399-400.) In the case of
Mason vs. U. S., 61 L. ed., 1198, it appears that Mason was called to testify before a grand jury engaged in
investigating a charge of gambling against six other men. After stating that he was sitting at a table with said men when
they were arrested, he refused to answer two questions, claiming so to do might tend to incriminate him: (1) "Was there
a game of cards being played on this particular evening at the table at which you were sitting?" (2) "Was there a game
of cards being played at another table at this time?" The foreman of the grand jury reported the matter to the judge, who
ruled "that each and all of said questions are proper and that the answers thereto would not tend to incriminate the
witnesses." Mason was again called and he refused to answer the first question propounded to him, but, half yielding to
frustration, he said in response to the second question: "I don't know." In affirming the conviction for contempt, the
Supreme Court of the United States among other things said:
"In the present case the witnesses certainly were not relieved from answering merely because they declared that so to
do might incriminate them. The wisdom of the rule in this regard is well illustrated by the enforced answer, 'I don't
know,' given by Mason to the second question, after he had refused to reply under a claim of constitutional privilege."
Since according to the witness himself the transaction was legal, and that he gave the P440,000 to a representative of
Burt in compliance with the latter's verbal instruction, we find no basis upon which to sustain his claim that to reveal
the name of that person might incriminate him. There is no conflict of authorities on the applicable rule, to wit:
"Generally, the question whether testimony is privileged is for the determination of the Court. At least, it is not enough
for the witness to say that the answer will incriminate him, as he is not the sole judge of his liability. The danger of self
incrimination must appear reasonable and real to the court, from all the circumstances, and from the whole case, as well
as from his general conception of the relations of the witness. Upon the facts thus developed, it is the province of the
court to determine whether a direct answer to a question may criminate or not. * * * The fact that the testimony of a
witness may tend to show that he has violated the law is not sufficient to entitle him to claim the protection of the
constitutional provision against self-incrimination, unless he is at the same time liable to prosecution and punishment
for such violation. The witness cannot assert his privilege by reason of some fanciful excuse, for protection against an
imaginary danger, or to secure immunity to a third person." (3 Wharton's Criminal Evidence, 11th ed., secs. 1135,
1136.)
"It is the province of the trial judge to determine from all the facts and circumstances of the case whether the witness is
justified in refusing to answer. (People vs. Gonzo, 23 N. E. [2d], 210 [III. App., 1939].) A witness is not relieved from
answering merely on his own declaration that an answer might incriminate him, but rather it is for the trial judge to
decide that question." (Mason vs. U. S., 244 U. S., 362; 61 L. ed., 1193, 1200.)
As against witness's inconsistent and unjustified claim to a constitutional right, is his clear duty as a citizen to give
frank, sincere, and truthful testimony before a competent authority. The state has the right to exact fulfilment of a
citizen's obligation, consistent of course with his right under the Constitution. The witness in this case has been
vociferous and militant in claiming constitutional rights and privileges but patently recreant to his duties and
obligations to the Government which protects those rights under the law. When a specific right and a specific

143
obligation conflict with each other, and one is doubtful or uncertain while the other is clear and imperative, the former
must give way to the latter. The right to life is one of the most sacred that the citizen may claim, and yet the state may
deprive him of it if he violates his corresponding obligation to respect the life of others. As Mr. Justice Johnson said in
Anderson vs. Dunn: "The wretch beneath the gallows may repine at the fate which awaits him, and yet it is not less
certain that the laws under which he suffers were made for the security." Paraphrasing and applying that
pronouncement here, the petitioner may not relish the restraint of his liberty pending the fulfilment by him of his duty,
but it is no less certain that the laws under which his liberty is restrained were made for his welfare.
From all the foregoing, it follows that the petition must be denied, and it is so ordered, with costs.
Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.
TUASON, J., dissenting:
The estates deal which gave rise to petitioner's examination by a committee of the Senate was one that aroused popular
indignation as few cases of graft and corruption have. The investigation was greeted with spontaneous outburst of
applause by an outraged citizenry, and the Senate was rightly commended for making the lead in getting at the bottom
of an infamous transaction.
All the more necessary it is that we should approach the consideration of this case. with circumspection, lest the
influence of strong public passions should get the better of our judgment. It is trite to say that public sentiment fades
into insignificance before a proper observance of constitutional processes, the maintenance of the constitutional
structure, and the protection of individual rights. Only thus can a government of laws, the foundation stone of human
liberty, be strengthened and made secure for that very public.
It is with these thoughts in mind that, with sincere regret, I am constrained to dissent.
The power of legislative bodies under the American system of government to punish for contempt was at the beginning
totally denied by some courts and students of constitutional law, on the ground that this power is judicial in nature and
belongs to the judiciary branch of the government under the constitutional scheme. The point however is now settled in
favor of the existence of the power. This rule is based on the necessity for the attainment of the ends for which
legislative body is created. Nor can the legitimacy of the purpose of the investigation which the Senate ordered in this
case be disputed. As a corollary, it was likewise legitimate and necessary for the committee to summon the petitioner
with a command to produce his books and documents, and to commit him to prison for his refusal or failure to obey the
subpoena. And, finally, there is no question that the arresting officers were fully justified in using necessary bodily
force to bring him before the bar of the Senate when he feigned illness and stalled for time in the mistaken belief that
after the closing of the then current session of Congress he could go scot-free.
At the same time, there is also universal agreement that the power is not absolute. The disagreement lies in the extent of
the power, and such disagreement is to be found even between decisions of the same court. Anderson vs. Dunn, 6
Wheat., No. 204, may be said to have taken the most liberal view of the legislature's authority, and Kilbourn vs.
Thompson, 103 U. S. 168, which partly overruled and qualified the former, the strictest. By the most liberal standard
the power is restricted "by considerations as to the nature of the inquiry, occasion, or action in connection with which
the contemptuous conduct has occurred." Punishment must be resorted to for the efficient exercise of the legislative
function. Even Anderson vs. Dunn speaks of the power as "the least possible power adequate to the end proposed."
Judged by any test, the question propounded to the witness does not, in my opinion, meet the constitutional
requirement. It is obvious, I think, that the query has nothing to do with any matter within the cognizance of the
Congress. There is, on the contrary, positive suggestion that the question has no relation to the contemplated
legislation. The statement of the committee in its report that the information sought to be obtained would clear the
names of the persons suspected of having received the money, is, on the surface, the most or only plausible reason that
can be advanced. Assuming this to be the motive behind the question, yet little reflection will show that the same is
beyond the scope of legislative authority and prerogatives. It is outside the concern of the Congress to protect the honor
of particular citizens except that of its own members' as a means of preserving respect and confidence in that body.
Moreover, the purported good intention must assume, if it is to materialize, that the persons under suspicion are really
innocent; for if they are not and the witness will tell the truth, the result will be to augment their disgrace rather than
vindicate their honor. Thi's is all the more likely to happen because one of those persons, is judged from the
committee's findings, the most likely one, to say the least, who got the money.
If the process of deduction is pressed further, the reasonable conclusion seems to be that the object of the question is, to
mention only one, to prepare the way for a court action. The majority decision indirectly admits or insinuates this to be
the case. It says; "It appearing that the questioned transaction was effected by the head of the Department of Justice
himself, it is not reasonable to expect the fiscal or the Court of First Instance of Manila will take the initiative to
investigate and prosecute the parties responsible for the deal until and unless the Senate shall have determined who
those parties are and shall have taken such measures as may be within its competence to take, to redress the wrong that
may have been committed against the people as a result of the transaction." So here is an admission, implied if not
express, that the Senate wants the witness to give names because the fiscal or the courts will not initiate an action
against parties who should be prosecuted. It is needless to say that the institution of a criminal or civil suit is a matter
that devolves upon other departments of the government, alien to the duties of the Congress to look after.
The Congress is at full liberty, of course, to make any investigation for the purpose of aiding the fiscal or the courts,
and ask any question which a witness may please to answer, but this liberty does not carry with it the authority to
imprison persons who refuse to testify.

144
In the intricacy and complexity of an investigation it is often impossible to foretell before its close what relation certain
facts may bear on the final results, and experience has shown that investigators and courts would do well to veer on the
liberal side in the resolution of doubtful questions. But the Senate is not now in the midst of an inquiry with the
situation still in a fluid or tentative state. Now the facts are no longer confused. The committee has finished its
investigation and submitted its final report and the Senate has appproved a bill on the bases of the facts found. All the
pertinent facts having been gathered, as is to be inferred from that report and the nature of the Senate's action, every
question, every fact, every bit of testimony has taken a distinct meaning susceptible of concrete and definite evaluation;
the task has been reduced to the simple process of sifting the grain from the chaffs. In the light of the committee's
report and of the bill introduced and appproved in the Senate, it seems quite plain that the express naming of the
recipient or recipients of the money is entirely unessential to anything the Senate has a right or duty to do in the
premises. Names may be necessary for the purpose of criminal prosecution, impeachment or civil suit. In such
proceedings, identities are essential. In some legislative investigations it is important to know the names of public
officials involved. But the particular disclosure sought of the petitioner here is immaterial to the proposed law. It is
enough for the Senate, for its own legitimate object, to learn how the Department of Justice was being run, to know the
part the Secretary of Justice had in the purchase, and to have a moral conviction as to the identity of the person who
benefited thereby. The need for such legislation as was envisaged in the resolution and translated into the bill approved
by the Senate is met by an insight into a broad outline of the deal. To paraphrase the U. S. Supreme Court in Anderson
vs. Dunn, although the passage was used in another connection, legislation is a science of experiment and the relation
between the legislator and the end does not have to be so direct as to strike the eye of the former.
One of the proposed laws prohibits brothers and near relatives of any president of the Philippines from intervening
directly or indirectly in transactions in which the Government is a party. It is stated that this is subject to change
depending on the answer Arnault may give. This statement is wide open to challenge.
If Arnault should name Antonio Quirino it must be admitted that the bill would not be altered. But let us suppose that
the witness will point to another man. Will the result be any different? Will the Senate recall the bill? I can not perceive
the slightest possibility of such eventuality. The pending bill was framed on the assumption that Antonio Quirino was a
party to the deal in question. As has been said, the committee entertains a moral conviction that this brother of the
President was the recipient of a share of the proceeds of sale. No amount of assurance by Arnault to the contrary would
be believed by the committee in the face of his absolute unreliability for truth. And, I repeat, the proposed legislation
does not need for its justification legal evidence of Antonio Quirino's intervention in the transaction.
All this in the first place. In the second place, it is not to be assumed that the present bill is aimed solely against
Antonio Quirino whose relation to the Administration is but temporary. It is more reasonable to presume that the
proposed enactment is intended for all time and for all brothers of future presidents, for in reality it is no more than an
extension or enlargment of laws already found in the statute book which guard against temptations to exploit official
positions or influence to the prejudice of public interests.
The disputed question is, in fact, not only irrelevant but moot. This is decisive of the irrelevancy of this question. As
has been noticed, the committee has submitted its final report and recommendation, and a bill has been approved by the
Senate calculated to prevent recurrence of the anomalies exposed. For the purpose for which it was instituted the
inquiry is over and the committee's mission accomplished.
It is true that the committee continues to sit during the recess of Congress, but it is obvious from all the circumstances
that the sole and real object of the extension of the committee's sittings is to receive the witness' answer in the event he
capitulates. I am unable to see any new phase of the deal which the Senate could legitimately wish to know, and the
respondents and this Court have not pointed out any. That the committee has not sat and nothing has been done so far
except to wait for Arnault's answer is a convincing manifestation of the above conclusion.
The order "to continue its investigation" contained in Senate Resolution No. 16 cannot disguise the realities revealed by
the Senate's actions already referred to and by the emphasis given to the instruction "to continue its (committee's)
examination of Jean L. Arnault regarding the name of the person to whom he gave the P440,000." The instruction 'to
continue the investigation' is not entitled to the blind presumption that it embraces matters other than the revelation by
the witness of the name of the person , who got the money. Jurisdiction to deprive a citizen of liberty outside the usual
process is not acquired by innuendos or vague assertions of the facts on which jurisdiction is made to depend. If the
judgment of a court of law of limited jurisdiction does not enjoy the presumption of legality, much less can the
presumption of regularity be invoked for a resolution of a deliberative body whose power to inflict punishment upon
private citizens is wholly derived by implication and vehemently contested by some judges. At any rate, "the stronger
presumption of innocence attends accused at the trial", and "it is incumbent" upon the respondents "to show that the
question pertains to some matter under investigation." (Sinclair vs. U. S., 73 L. ed., 693.) This rule stems from the fact
that the power is in derogation of the constitutional guarantee that no person shall be deprived of life, liberty or
property without due process of law, which presupposes "a trial in which the rights of the parties shall be decided by a
tribunal appointed by law, which tribunal is to be governed by rules of law previously established." Powers so
dangerous to the liberty of a citizen can not be allowed except where the pertinency is clear. A Judge who abuses such
power may be impeached and he acts at all times under the sense of this accountability and responsibility. His victims
may be reached by the pardoning power. But if the Congress be allowed this unbounded jurisdiction of discretion, there
is no redress. The Congress may dispoil of a citizen's life, liberty or Property and there is no power on earth to stop its

145
hand. There is, there can be, no such unlimited power in any department of the government of the Republic. (Loan
Association vs. Topeka, 20 Wall, Nos. 662, 663; Taylor vs. Porter, 4 Hill No. N. Y. 140.)
The above rule and discussion apply with equal force to the instruction to the committee in the original resolution, "to
determine the parties responsible for the deal." It goes without saying that the Congress cannot authorize a committee
to do what it itself cannot do. In other words, the Senate could not insist on the disclosure of Arnault's accomplice in
the present state of the investigation if the Senate were conducting the inquiry itself instead of through a committee.
Our attention is called to the fact that "in the Philippines, the legislative power is vested in the Congress of the
Philippines alone, and therefore that the Congress of the Philippines has a wider range of legislative field than the
Congress of the United States or any state legislature." From this premise the inference is drawn that "the field of
inquiry into which it (Philippine Congress) may enter is also wider."
This argument overlooks the important fact that congressional or legislative committees both here and in the United
States, do not embark upon fishing expeditions in search of information which by chance may be useful to legislation.
Inquiries entrusted to congressional committee, whether here or in the United States, are necessarily for specific objects
within the competence of the Congress to look into. I do not believe any reason, rule or principle could be found which
would sustain the theory that just because the United States Congress or a state legislature could legislate on, say, only
ten subjects and the Philippine Congress on twenty, the latter's power to commit to prison for contempt is
proportionately as great as that of the former. In the consideration of the legality of an imprisonment for contempt by
each House, the power is gauged nut by the greater or lesser number of subject matters that fall within its sphere of
action, but by the answer to the question, has it jurisdiction over the matter under investigation? Bearing this distinction
in mind, it is apparent that the power of a legislature to punish for contempt can be no greater nor less than that of any
other. Were it possible for the Philippine Senate and the United States Senate to undertake an investigation of exactly
identical anomalies in their respective departments of justice, could it be asserted with any support of logic that one
Senate has a wider authority to imprison for contempt in such investigation simply because it has a "wider range of
legislative field?"
It is said that the Senate bill has not been acted upon by the lower house and that even if it should pass in that chamber
it would still have the President's veto to hurdle. It has been expressly stated at the oral argument, and there is
insinuation in this Court's decision, that the revelation of the name or names of the person or persons who received the
money may help in convincing the House of Representatives or the President of the wisdom of the pending measure.
Entirely apart from the discussion in the preceding paragraphs, it is enough answer to this that the House of
Representatives and the Chief Executive have their own idea of what they need to guide them in the discharge of their
respective duties, and they have the facilities of their own for obtaining the requisite data.
There is another objection, more fundamental, to the Senate invoking the interest or convenience of the other house or
the President as ground of jurisdiction. The House of Representatives and the President are absolutely independent of
the Senate in the conduct of legislative and administrative inquiries, and the power of each House to imprison for
contempt does not go beyond the necessity for its own self-preservation or for making its express powers effective.
Each House exercises this power to protect or accomplish its own authority and not that of the other House or the
President. Each House and the President are supposed to take care of their respective affairs. The two Houses and the
Chief Executive act separately although the concurrence of the three is required in the passage of legislation and of
both House's in the approval of resolutions. As the United States Supreme Court in Kilbourn vs. Thompson, said, "No
general power of inflicting punishment by the Congress (as distinct from a House is found in the Constitution." "An act
of Congress -it said-which proposed to adjudge a man guilty of a crime and inflict the punishment, will be considered
by all thinking men to be unauthorized by the Constitution."
Kilbourn vs. Thompson, supra, it is said, can not be relied on in this case as a precedent because, so it is also said, "the
subject of the inquiry, which related to a private real-estate pool or partnership, was not within the jurisdiction of either
House of Congress; while here it is not disputed that the subject of the inquiry, which relates to a transaction involving
a questionable expenditure by the Government of P5,000,000 of public funds, is within the jurisdiction of the Senate."
Yet the remarks of Judge Landis which are quoted in the majority decision point out that the inquiry "was a normal and
customary part of the legislative process." Moreover, Kilbourn vs. Thompson is important, not for the matter it treated
but for the principles it enunciated.
It is also said that Kilbourn vs. Thompson did not meet with universal approval as Judge Landis' article above
mentioned shows. The jurist who delivered the opinion in that case, Mr. Justice Miller, was one of the "giants" who
have ever sat on the Supreme Federal Bench, venerated and eminent for the width and depth of his learning.
Subsequent decisions, as far as I have been able to ascertain, have not rejected or criticized but have followed it, and it
still stands as a landmark in this branch of constitutional law.
If we can lean on private opinions and magazine articles for comfort, the petitioner can cite one by a legal scholar and
author no less renown and respected than Judge Landis. I refer to Judge Wigmore who, referring to an investigation of
the U. S. Department of Justice said in an article published in 19 (1925) Illinois Law Review, 452:
"The senatorial debauch of investigations-poking into political garbage cans and dragging the sewers of political
intrigue-filled the winter of 1923-24 with a stench which has not yet passed away. Instead of employing the
constitutional, manly, fair procedure of impeachment, the Senate flung self-respect and fairness to the winds. As a
prosecutor, the Senate presented a spectacle which cannot even be dignified by a comparison with the persecutive

146
scoldings of Coke and Scroggs and Jeffreys, but fell rather in popular estimate to the level of professional searchers of
the municipal dunghills.'
It is far from my thought to subscribe to this vitupiration as applied to our Senate. Certainly, this august body did not
only do the right thing but is entitled to the lasting gratitude of the peo for taking the courageous stand it did in probing
into an anomaly that robbed a depleted treasury of a huge amount. I have tried to make it clear that my disagreement
with the majority lies not in the propriety or constitutionality of the investigation but in the pertinency to that
investigation of a single question. The investigation, as has been said, was legal and commendable. My objection is that
the Senate having started within the bounds of its authority, has, in entire good faith, overstepped those bounds and
trespassed on a territory reserved to other branches of the government, when it imprisoned a witness for contumacy on
a point that is unimportant, useless, impertinent and irrelevant, let alone moot.
Thus understood, this humble opinion does not conflict with the views of Judge Landis and all other advocates of wide
latitude for congressional investigations. All are agreed, and the majority accept the proposition, that there is a limit to
the legislative power to punish for contempt. The limit is set in Anderson vs. Dunn which Judge Landis approved-"the
least possible power adequate to the end proposed."
Petition denied.
1. The appeal was withdrawn on November 9, 1949.
1. These bills, however, have not yet been acted upon by the House of Representative

147
U.S. Supreme Court
ROE v. WADE, 410 U.S. 113 (1973)
410 U.S. 113
ROE ET AL. v. WADE, DISTRICT ATTORNEY OF DALLAS COUNTY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS
No. 70-18.

Argued December 13, 1971 Reargued October 11, 1972

Decided January 22, 1973
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion
laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the
mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was
permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws,
basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and
impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and
Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that
declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and
overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint
not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from
the District Court's grant of declaratory relief to Roe and Hallford. Held:
1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone,
review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive relief
and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation
involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that
an actual controversy [410 U.S. 113, 114] must exist at review stages and not simply when the action is initiated. Pp.
124-125.
(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no
federally protected right not assertable as a defense against the good-faith state prosecutions pending against him.
Samuels v. Mackell, 401 U.S. 66 . Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to
present an actual case or controversy. Pp. 127-129.
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on
the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process
Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's
qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in
protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and
reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be
left to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the
health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal
health. Pp. 163, 164.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it
chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother. Pp. 163-164; 164-165.
4. The State may define the term "physician" to mean only a physician currently licensed by the State, and may
proscribe any abortion by a person who is not a physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully recognize the
Court's ruling [410 U.S. 113, 115] that the Texas criminal abortion statutes are unconstitutional. P. 166.
314 F. Supp. 1217, affirmed in part and reversed in part.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN,
STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C. J., post, p. 207, DOUGLAS, J., post, p. 209, and
STEWART, J., post, p. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST,
J., joined, post, p. 221. REHNQUIST, J., filed a dissenting opinion, post, p. 171.
Sarah Weddington reargued the cause for appellants. With her on the briefs were Roy Lucas, Fred Bruner, Roy L.
Merrill, Jr., and Norman Dorsen.
Robert C. Flowers, Assistant Attorney General of Texas, argued the cause for appellee on the reargument. Jay Floyd,
Assistant Attorney General, argued the cause for appellee on the original argument. With them on the brief were

148
Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive
Assistant Attorney General, Henry Wade, and John B. Tolle. * [410 U.S. 113, 116]
[ Footnote * ] Briefs of amici curiae were filed by Gary K. Nelson, Attorney General of Arizona, Robert K. Killian,
Attorney General of Connecticut, Ed W. Hancock, Attorney General of Kentucky, Clarence A. H. Meyer, Attorney
General of Nebraska, and Vernon B. Romney, Attorney General of Utah; by Joseph P. Witherspoon, Jr., for the
Association of Texas Diocesan Attorneys; by Charles E. Rice for Americans United for Life; by Eugene J. McMahon
for Women for the Unborn et al.; by Carol Ryan for the American College of Obstetricians and Gynecologists et al.; by
Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and Dolores V. Horan for Certain Physicians, Professors
and Fellows of the American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and
Frederic S. Nathan for Planned Parenthood Federation of America, Inc., et al.; by Alan F. Charles for the National
Legal Program on Health Problems of the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by
[410 U.S. 113, 116] Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the National Right to Life
Committee; by Helen L. Buttenwieser for the American Ethical Union et al.; by Norma G. Zarky for the American
Association of University Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California
Committee to Legalize Abortion et al.; and by Robert E. Dunne for Robert L. Sassone.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to
state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in
many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative
product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical
knowledge and techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the
vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject
inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious
training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to
observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the
problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek
earnestly to do this, and, because we do, we [410 U.S. 113, 117] have inquired into, and in this opinion place some
emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the
abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated
dissent in Lochner v. New York, 198 U.S. 45, 76 (1905):
"[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain
opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution of the United States."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. 1 These make it a
crime to "procure an abortion," as therein [410 U.S. 113, 118] defined, or to attempt one, except with respect to "an
abortion procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes are
in existence in a majority of the States. 2 [410 U.S. 113, 119]
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, 1, set forth in 3 H. Gammel, Laws of
Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present
time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas
Rev. Stat., c. 8, Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-1076 (1911). The final article in each of these
compilations provided the same exception, as does the present Article 1196, for an abortion by "medical advice for the
purpose of saving the life of the mother." 3 [410 U.S. 113, 120]
II
Jane Roe, 4 a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970
against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes
were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion
"performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal"
abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she
could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed
that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by
the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue
"on behalf of herself and all other women" similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his
complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and [410 U.S.
113, 121] that two such prosecutions were pending against him. He described conditions of patients who came to him
seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell

149
within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague
and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to
privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by
the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
John and Mary Doe, 5 a married couple, filed a companion complaint to that of Roe. They also named the District
Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does
alleged that they were a childless couple; that Mrs. Doe was suffering from a "neural-chemical" disorder; that her
physician had "advised her to avoid pregnancy until such time as her condition has materially improved" (although a
pregnancy at the present time would not present "a serious risk" to her life); that, pursuant to medical advice, she had
discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the
pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an
amendment to their complaint, the Does purported to sue "on behalf of themselves and all couples similarly situated."
The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus
presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, [410 U.S. 113,
122] and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the
filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members
of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed
to allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the
requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the
"fundamental right of single women and married persons to choose whether to have children is protected by the Ninth
Amendment, through the Fourteenth Amendment," and that the Texas criminal abortion statutes were void on their face
because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth
Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It
therefore dismissed the Does' complaint, declared the abortion statutes void, and dismissed the application for
injunctive relief. 314 F. Supp. 1217, 1225 (ND Tex. 1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. 1253, have appealed to this Court from
that part of the District Court's judgment denying the injunction. The defendant District Attorney has purported to
cross-appeal, pursuant to the same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides
also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the
appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits.
402 U.S. 941 (1971). [410 U.S. 113, 123]
III
It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari
before judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our
decisions in Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v. University Committee, 399 U.S. 383 (1970), are
to the effect that 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We
conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory
aspects of a case of this kind when it is properly here, as this one is, on appeal under 1253 from specific denial of
injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S.
320 (1970); Florida Lime Growers v. Jacobsen, 362 U.S. 73, 80 -81 (1960). It would be destructive of time and energy
for all concerned were we to rule otherwise. Cf. Doe v. Bolton, post, p. 179.
IV
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that
"personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204 (1962), that insures that "the
dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable
of judicial resolution," Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972)?
And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the
propriety of the federal court's granting relief to him as a plaintiff-intervenor? [410 U.S. 113, 124]
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of
her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March
1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to
obtain a legal abortion in Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then
presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted
by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125
(CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-
991 (Kan. 1972). See Truax v. Raich, 239 U.S. 33 (1915). Indeed, we do not read the appellee's brief as really asserting
anything to the contrary. The "logical nexus between the status asserted and the claim sought to be adjudicated," Flast
v. Cohen, 392 U.S., at 102 , and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969), are
both present.
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court
hearing on May 22, 1970, 6 or on the following June 17 when the court's opinion and judgment were filed. And he

150
suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to any
1970 pregnancy. [410 U.S. 113, 125]
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not
simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Golden v. Zwickler,
supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so
short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a
case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be
effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in
the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a
conclusion of nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co.
v. ICC, 219 U.S. 498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S.
175, 178 -179 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632 -633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a
justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his
complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by
indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of
Texas vs. [410 U.S. 113, 126] James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H.
Hallford, No. C-69-2524-H. In both cases the defendant is charged with abortion . . . ."
In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the
state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for
summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to
the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court.
Although he stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of
any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the
state prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule
articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a
pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is
prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a "potential
future defendant" and to assert only the latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66 (1971), compels the conclusion
that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The
court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action,
however, are those expressed in Samuels v. Mackell, supra, and in Younger v. [410 U.S. 113, 127] Harris, 401 U.S.
37 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); and Byrne v. Karalexis, 401
U.S. 216 (1971). See also Dombrowski v. Pfister, 380 U.S. 479 (1965). We note, in passing, that Younger and its
companion cases were decided after the three-judge District Court decision in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed. 7 He is remitted to his defenses in the state
criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief
and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little
significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes.
Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have
children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for
"other highly personal reasons." But they "fear . . . they may face the prospect of becoming [410 U.S. 113, 128]
parents." And if pregnancy ensues, they "would want to terminate" it by an abortion. They assert an inability to obtain
an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside
Texas to some place where the procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged
"detrimental effect upon [their] marital happiness" because they are forced to "the choice of refraining from normal
sexual relations or of endangering Mary Doe's health through a possible pregnancy." Their claim is that sometime in
the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in
the future she might want an abortion that might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future
contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future
impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the
Does' estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are
not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy.

151
Younger v. Harris, 401 U.S., at 41 -42; Golden v. Zwickler, 394 U.S., at 109 -110; Abele v. Markle, 452 F.2d, at 1124-
1125; Crossen v. Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of those resolved otherwise in the
cases that the Does urge upon us, namely, Investment Co. Institute v. Camp, 401 U.S. 617 (1971); Data Processing
Service v. Camp, 397 U.S. 150 (1970); [410 U.S. 113, 129] and Epperson v. Arkansas, 393 U.S. 97 (1968). See also
Truax v. Raich, 239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the
District Court, and we affirm that dismissal.
V
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be
possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the
concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital,
familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut,
381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in result); or among
those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J.,
concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of
abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the
criminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today
are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy
except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead,
they derive from statutory changes effected, for the most part, in the latter half of the 19th century. [410 U.S. 113, 130]
1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire
abortifacients were known and that criminal abortions were severely punished. 8 We are also told, however, that
abortion was practiced in Greek times as well as in the Roman Era, 9 and that "it was resorted to without scruple." 10
The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally
opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and
he resorted to abortion when, upon this standard, he felt the procedure advisable. 11 Greek and Roman law afforded
little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a
violation of the father's right to his offspring. Ancient religion did not bar abortion. 12
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical
profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described [410 U.S. 113,
131] as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most
complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum
of the medical knowledge of the past? 13 The Oath varies somewhat according to the particular translation, but in any
translation the content is clear: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in
like manner I will not give to a woman a pessary to produce abortion," 14 or "I will neither give a deadly drug to
anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive
remedy." 15
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, p. 179, it
represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why
did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein
provides us with a theory: 16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of
philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at
least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it
was a matter of dogma. For them the embryo was animate from the moment of conception, and abortion meant
destruction of a living being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," [410 U.S.
113, 132] and "[i]n no other stratum of Greek opinion were such views held or proposed in the same spirit of
uncompromising austerity." 17
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion
and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.
D. 130-200) "give evidence of the violation of almost every one of its injunctions." 18 But with the end of antiquity a
decided change took place. Resistance against suicide and against abortion became common. The Oath came to be
popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the
nucleus of all medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a
Pythagorean manifesto and not the expression of an absolute standard of medical conduct." 19
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables
us to understand, in historical context, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that at common law, abortion performed before "quickening" - the first
recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy 20 - was
not an indictable offense. 21 The absence [410 U.S. 113, 133] of a common-law crime for pre-quickening abortion
appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of

152
when life begins. These disciplines variously approached the question in terms of the point at which the embryo or
fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a
"soul" or "animated." A loose consensus evolved in early English law that these events occurred at some point between
conception and live birth. 22 This was "mediate animation." Although [410 U.S. 113, 134] Christian theology and the
canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until
the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was
agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction,
therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack
of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first
principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by
later common-law scholars and found its way into the received common law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton,
writing early in the 13th century, thought it homicide. 23 But the later and predominant view, following the great
common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited [410 U.S. 113, 135]
passage, Coke took the position that abortion of a woman "quick with childe" is "a great misprision, and no murder." 24
Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not
murder), "modern law" took a less severe view. 25 A recent review of the common-law precedents argues, however,
that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law
crime. 26 This is of some importance because while most American courts ruled, in holding or dictum, that abortion of
an unquickened fetus was not criminal under their received common law, 27 others followed Coke in stating that
abortion [410 U.S. 113, 136] of a quick fetus was a "misprision," a term they translated to mean "misdemeanor." 28
That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum
(due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful
that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came
in 1803. It made abortion of a quick fetus, 1, a capital crime, but in 2 it provided lesser penalties for the felony of
abortion before quickening, and thus preserved the "quickening" distinction. This contrast was continued in the general
revision of 1828, 9 Geo. 4, c. 31, 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1
Vict., c. 85. 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, 59, that
formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life
(Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of "the life of a child
capable of being born alive." It made a willful act performed with the necessary intent a felony. It contained a proviso
that one was not to be [410 U.S. 113, 137] found guilty of the offense "unless it is proved that the act which caused
the death of the child was not done in good faith for the purpose only of preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v. Bourne, 1939. 1 K. B. 687. This case
apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant
woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten
referred to the 1929 Act, and observed that that Act related to "the case where a child is killed by a wilful act at the time
when it is being delivered in the ordinary course of nature." Id., at 691. He concluded that the 1861 Act's use of the
word "unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even though there
was no mention of preserving the mother's life in the 1861 Act. He then construed the phrase "preserving the life of the
mother" broadly, that is, "in a reasonable sense," to include a serious and permanent threat to the mother's health, and
instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary
for this purpose. Id., at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act
permits a licensed physician to perform an abortion where two other licensed physicians agree (a) "that the continuance
of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of
the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated," or (b) "that
there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as [410
U.S. 113, 138] to be seriously handicapped." The Act also provides that, in making this determination, "account may
be taken of the pregnant woman's actual or reasonably foreseeable environment." It also permits a physician, without
the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion "is
immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the
pregnant woman."
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-
existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of
Lord Ellenborough's Act that related to a woman "quick with child." 29 The death penalty was not imposed. Abortion
before quickening was made a crime in that State only in 1860. 30 In 1828, New York enacted legislation 31 that, in
two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened
fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter.
Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it "shall have
been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for

153
such purpose." By 1840, when Texas had received the common law, 32 only eight American States [410 U.S. 113, 139]
had statutes dealing with abortion. 33 It was not until after the War Between the States that legislation began generally
to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient
with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the
exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision
soon disappeared and the typical law required that the procedure actually be necessary for that purpose.
Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most
States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the
jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.
34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health. 35 Three
States permitted abortions that were not "unlawfully" performed or that were not "without lawful justification," leaving
interpretation of those standards to the courts. 36 In [410 U.S. 113, 140] the past several years, however, a trend
toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent
laws, most of them patterned after the ALI Model Penal Code, 230.3, 37 set forth as Appendix B to the opinion in Doe
v. Bolton, post, p. 205.
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion
of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.
Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most
States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the
opportunity [410 U.S. 113, 141] to make this choice was present in this country well into the 19th century. Even later,
the law continued for some time to treat less punitively an abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th
century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role
in the enactment of stringent criminal abortion legislation during that period.
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans. of the Am.
Med. Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed
to investigate criminal abortion "with a view to its general suppression." It deplored abortion and its frequency and it
listed three causes of "this general demoralization":
"The first of these causes is a wide-spread popular ignorance of the true character of the crime - a belief, even among
mothers themselves, that the foetus is not alive till after the period of quickening.
"The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal
life . . . .
"The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and
statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which
are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical
dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil
purposes; while personally and as criminally affected, it fails to recognize it, [410 U.S. 113, 142] and to its life as yet
denies all protection." Id., at 75-76.
The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable
destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation
of state medical societies "in pressing the subject." Id., at 28, 78.
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation,
"We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on
the bench would call things by their proper names. We could do no less." 22 Trans. of the Am. Med. Assn. 258 (1871).
It proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it "be
unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of
at least one respectable consulting physician, and then always with a view to the safety of the child - if that be
possible," and calling "the attention of the clergy of all denominations to the perverted views of morality entertained by
a large class of females - aye, and men also, on this important question."
Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In
that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced
abortion, except when there is "documented medical evidence" of a threat to the health or life of the mother, or that the
child "may be born with incapacitating physical deformity or mental deficiency," or that a pregnancy "resulting from
legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the
[410 U.S. 113, 143] patient," two other physicians "chosen because of their recognized professional competence have
examined the patient and have concurred in writing," and the procedure "is performed in a hospital accredited by the
Joint Commission on Accreditation of Hospitals." The providing of medical information by physicians to state
legislatures in their consideration of legislation regarding therapeutic abortion was "to be considered consistent with the
principles of ethics of the American Medical Association." This recommendation was adopted by the House of
Delegates. Proceedings of the AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a
reference committee noted "polarization of the medical profession on this controversial issue"; division among those

154
who had testified; a difference of opinion among AMA councils and committees; "the remarkable shift in testimony" in
six months, felt to be influenced "by the rapid changes in state laws and by the judicial decisions which tend to make
abortion more freely available;" and a feeling "that this trend will continue." On June 25, 1970, the House of Delegates
adopted preambles and most of the resolutions proposed by the reference committee. The preambles emphasized "the
best interests of the patient," "sound clinical judgment," and "informed patient consent," in contrast to "mere
acquiescence to the patient's demand." The resolutions asserted that abortion is a medical procedure that should be
performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in
conformity with state law, and that no party to the procedure should be required to violate personally held moral
principles. 38 Proceedings [410 U.S. 113, 144] of the AMA House of Delegates 220 (June 1970). The AMA Judicial
Council rendered a complementary opinion. 39
7. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA
adopted Standards for Abortion Services. These were five in number:
"a. Rapid and simple abortion referral must be readily available through state and local public [410 U.S. 113, 145]
health departments, medical societies, or other nonprofit organizations.
"b. An important function of counselling should be to simplify and expedite the provision of abortion services; it should
not delay the obtaining of these services.
"c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric
consultation should be sought for definite indications and not on a routine basis.
"d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may
qualify as abortion counselors.
"e. Contraception and/or sterilization should be discussed with each abortion patient." Recommended Standards for
Abortion Services, 61 Am. J. Pub. Health 396 (1971).
Among factors pertinent to life and health risks associated with abortion were three that "are recognized as important":
"a. the skill of the physician,
"b. the environment in which the abortion is performed, and above all
"c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history." Id., at 397.
It was said that "a well-equipped hospital" offers more protection "to cope with unforeseen difficulties than an office or
clinic without such resources. . . . The factor of gestational age is of overriding importance." Thus, it was recommended
that abortions in the second trimester and early abortions in the presence of existing medical complications be
performed in hospitals as inpatient procedures. For pregnancies in the first trimester, [410 U.S. 113, 146] abortion in
the hospital with or without overnight stay "is probably the safest practice." An abortion in an extramural facility,
however, is an acceptable alternative "provided arrangements exist in advance to admit patients promptly if unforeseen
complications develop." Standards for an abortion facility were listed. It was said that at present abortions should be
performed by physicians or osteopaths who are licensed to practice and who have "adequate training." Id., at 398.
8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates
approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August
by the Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972). We set forth the Act in full in
the margin. 40 The [410 U.S. 113, 147] Conference has appended an enlightening Prefatory Note. 41
VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century
and to justify their continued existence. [410 U.S. 113, 148]
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit
sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or
commentator has taken the argument seriously. 42 The appellants and amici contend, moreover, that this is not a proper
state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to
distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first
enacted, the procedure was a hazardous one for the woman. 43 This was particularly true prior to the [410 U.S. 113,
149] development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and
others first announced in 1867, but were not generally accepted and employed until about the turn of the century.
Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's,
standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been
argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to
restrain her from submitting to a procedure that placed her life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating
that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now
relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low
as or lower than the rates for normal childbirth. 44 Consequently, any interest of the State in protecting the woman
from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely
disappeared. Of course, important state interests in the areas of health and medical standards do remain. [410 U.S. 113,
150] The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed
under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the

155
performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision
for any complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills"
strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed.
Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in
protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy.
The third reason is the State's interest - some phrase it in terms of duty - in protecting prenatal life. Some of the
argument for this justification rests on the theory that a new human life is present from the moment of conception. 45
The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of
the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo
or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of
the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest,
recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert
interests beyond the protection of the pregnant woman alone. [410 U.S. 113, 151]
Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws,
when enacted, was to protect prenatal life. 46 Pointing to the absence of legislative history to support the contention,
they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened
this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws
can no longer be justified by any state interest. There is some scholarly support for this view of original purpose. 47
The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's
interest in protecting the woman's health rather than in preserving the embryo and fetus. 48 Proponents of this view
point out that in many States, including Texas, 49 by statute or judicial interpretation, the pregnant woman herself
could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another. 50 They
claim that adoption of the "quickening" distinction through received common [410 U.S. 113, 152] law and state
statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that
life begins at conception.
It is with these interests, and the weight to be attached to them, that this case is concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps
as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal
privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the
Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v.
Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz
v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States,
277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut,
381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty
guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These
decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of
ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy.
They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S.
1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405
U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships,
Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268
U.S. 510, 535 (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions
upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights
to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The
detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific
and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring,
may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical
health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and
there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In
other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All
these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she
is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.
With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion
decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive.
The [410 U.S. 113, 154] Court's decisions recognizing a right of privacy also acknowledge that some state regulation
in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in
safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy,
these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion
decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim

156
asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to
the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited
right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200
(1927) (sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not
unqualified and must be considered against important state interests in regulation.
We note that those federal and state courts that have recently considered abortion law challenges have reached the same
conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at
least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F. Supp.
800 (Conn. 1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No.
72-730; Doe v. Bolton, 319 F. Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F.
Supp. 1385 (ND Ill. 1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F. Supp. 986 (Kan. 1972); YWCA v.
Kugler, 342 F. Supp. 1048 (NJ 1972); Babbitz v. McCann, [410 U.S. 113, 155] 310 F. Supp. 293 (ED Wis. 1970),
appeal dismissed, 400 U.S. 1 (1970); People v. Belous, 71 Cal. 2d 954, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915
(1970); State v. Barquet, 262 So.2d 431 (Fla. 1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F. Supp. 587 (ED Ky. 1972), appeal docketed,
No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal docketed,
No. 70-42; Corkey v. Edwards, 322 F. Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg v. Brown,
321 F. Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, ___
Ind. ___, 285 N. E. 2d 265 (1972); Spears v. State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S. D. 663, 201 N.
W. 2d 123 (1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad
enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and
that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.
We agree with this approach.
Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be
justified only by a "compelling state interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969);
Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative
enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381
U.S., at 485 ; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307
-308 (1940); see [410 U.S. 113, 156] Eisenstadt v. Baird, 405 U.S., at 460 , 463-464 (WHITE, J., concurring in
result).
In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have
generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest
justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should
have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations
to protect health or prenatal life are dominant and constitutionally justifiable.
IX
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's
infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee
presented "several compelling justifications for state presence in the area of abortions," the statutes outstripped these
justifications and swept "far beyond any areas of compelling state interest." 314 F. Supp., at 1222-1223. Appellant and
appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state
imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect
prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully
with either formulation.
A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth
Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this
suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus'
right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.
51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a
person within the meaning of the Fourteenth Amendment.
The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three
references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States."
The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other
places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in
the Apportionment Clause, Art. I, 2, cl. 3; 53 in the Migration and Importation provision, Art. I, 9, cl. 1; in the
Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision
outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and
the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and
3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application

157
only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54 [410 U.S. 113,
158]
All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal
abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth
Amendment, does not include the unborn. 55 This is in accord with the results reached in those few cases where the
issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v.
New York City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434;
Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind., at ___,
285 N. E. 2d, at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S.
308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v. Dickinson, 28 [410 U.S. 113, 159]
Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971),
inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion
in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment
protection.
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other
considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the
medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-
479, 547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession
of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving,
Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and
appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of
potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy
she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy,
and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not
resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine,
philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's
knowledge, is not in a position to speculate as to the answer. [410 U.S. 113, 160]
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.
There has always been strong support for the view that life does not begin until live birth. This was the belief of the
Stoics. 56 It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. 57 It may be taken
to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained;
organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter
for the conscience of the individual and her family. 58 As we have noted, the common law found greater significance in
quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to
focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is,
potentially able to live outside the mother's womb, albeit with artificial aid. 59 Viability is usually placed at about
seven months (28 weeks) but may occur earlier, even at 24 weeks. 60 The Aristotelian theory of "mediate animation,"
that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic
dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would
recognize the existence of life from [410 U.S. 113, 161] the moment of conception. 61 The latter is now, of course,
the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-
Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however,
by new embryological data that purport to indicate that conception is a "process" over time, rather than an event, and by
new medical techniques such as menstrual extraction, the "morning-after" pill, implantation of embryos, artificial
insemination, and even artificial wombs. 62
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it,
begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when
the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal
injuries even though the child was born alive. 63 That rule has been changed in almost every jurisdiction. In most
States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained,
though few [410 U.S. 113, 162] courts have squarely so held. 64 In a recent development, generally opposed by the
commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of
prenatal injuries. 65 Such an action, however, would appear to be one to vindicate the parents' interest and is thus
consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have
been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been
represented by guardians ad litem. 66 Perfection of the interests involved, again, has generally been contingent upon
live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant
woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving

158
and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks
medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the
potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman
approaches [410 U.S. 113, 163] term and, at a point during pregnancy, each becomes "compelling."
With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the
light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-
established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be
less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion
procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.
Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to
perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that
is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of
the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending
physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical
judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by
an abortion free of interference by the State.
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This
is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State
regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is
interested in protecting fetal life after viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during
that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured
or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes
no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single
reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the
constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on
grounds of vagueness. See United States v. Vuitch, 402 U.S., at 67 -72.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure
on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is
violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be
left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the
health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal
health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S.
113, 165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother.
2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of
this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who
is not a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered.
That opinion and this one, of course, are to be read together. 67
This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and
examples of medical and legal history, with the lenity of the common law, and with the demands of the profound
problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period
of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision
vindicates the right of the physician to administer medical treatment according to his professional judgment up to the
points where important [410 U.S. 113, 166] state interests provide compelling justifications for intervention. Up to
those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic
responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper
medical judgment, the usual remedies, judicial and intra-professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall.
The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing
all abortion procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against
enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court's

159
decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241,
252 -255 (1967); Dombrowski v. Pfister, 380 U.S. 479 (1965). We are not dealing with a statute that, on its face,
appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris,
401 U.S., at 50 .
We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the
Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that
State are unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford's complaint in intervention is
dismissed. In all other respects, the judgment [410 U.S. 113, 167] of the District Court is affirmed. Costs are allowed
to the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
Footnotes
[ Footnote 1 ] "Article 1191. Abortion
"If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her
consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied,
and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it
be done without her consent, the punishment shall be doubled. By `abortion' is meant that the life of the fetus or
embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.
"Art. 1192. Furnishing the means
"Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
"Art. 1193. Attempt at abortion
"If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce
abortion, provided [410 U.S. 113, 118] it be shown that such means were calculated to produce that result, and shall
be fined not less than one hundred nor more than one thousand dollars.
"Art. 1194. Murder in producing abortion
"If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder."
"Art. 1196. By medical advice
"Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the
life of the mother."
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not
attacked here, reads:
"Art. 1195. Destroying unborn child
"Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before
actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not
less than five years."
[ Footnote 2 ] Ariz. Rev. Stat. Ann. 13-211 (1956); Conn. Pub. Act No. 1 (May 1972 special session) (in 4 Conn. Leg.
Serv. 677 (1972)), and Conn. Gen. Stat. Rev. 53-29, 53-30 (1968) (or unborn child); Idaho Code 18-601 (1948); Ill.
Rev. Stat., c. 38, 23-1 (1971); Ind. Code 35-1-58-1 (1971); Iowa Code 701.1 (1971); Ky. Rev. Stat. 436.020 (1962); La.
Rev. Stat. 37:1285 (6) (1964) (loss of medical license) (but see 14:87 (Supp. 1972) containing no exception for the life
of the mother under the criminal statute); Me. Rev. Stat. Ann., Tit. 17, 51 (1964); Mass. Gen. Laws Ann., c. 272, 19
(1970) (using the term "unlawfully," construed to exclude an abortion to save the mother's life, Kudish v. Bd. of
Registration, 356 Mass. 98, 248 N. E. 2d 264 (1969)); Mich. Comp. Laws 750.14 (1948); Minn. Stat. 617.18 (1971);
Mo. Rev. Stat. 559.100 (1969); Mont. Rev. Codes Ann. 94-401 (1969); Neb. Rev. Stat. 28-405 (1964); Nev. Rev. Stat.
200.220 (1967); N. H. Rev. Stat. Ann. 585:13 (1955); N. J. Stat. Ann. 2A:87-1 (1969) ("without lawful justification");
N. D. Cent. Code 12-25-01, 12-25-02 (1960); Ohio Rev. Code Ann. 2901.16 (1953); Okla. Stat. Ann., Tit. 21, 861
(1972-1973 Supp.); Pa. Stat. Ann., Tit. 18, [410 U.S. 113, 119] 4718, 4719 (1963) ("unlawful"); R. I. Gen. Laws Ann.
11-3-1 (1969); S. D. Comp. Laws Ann. 22-17-1 (1967); Tenn. Code Ann. 39-301, 39-302 (1956); Utah Code Ann. 76-
2-1, 76-2-2 (1953); Vt. Stat. Ann., Tit. 13, 101 (1958); W. Va. Code Ann. 61-2-8 (1966); Wis. Stat. 940.04 (1969);
Wyo. Stat. Ann. 6-77, 6-78 (1957).
[ Footnote 3 ] Long ago, a suggestion was made that the Texas statutes were unconstitutionally vague because of
definitional deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion peremptorily, saying only,
"It is also insisted in the motion in arrest of judgment that the statute is unconstitutional and void in that it does not
sufficiently define or describe the offense of abortion. We do not concur in respect to this question." Jackson v. State,
55 Tex. Cr. R. 79, 89, 115 S. W. 262, 268 (1908).
The same court recently has held again that the State's abortion statutes are not unconstitutionally vague or overbroad.
Thompson v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200. The court held that "the State of Texas
has a compelling interest to protect fetal life"; that Art. 1191 "is designed to protect fetal life"; that the Texas homicide
statutes, particularly Art. 1205 of the Penal Code, are intended to protect a person "in existence by actual birth" and
thereby implicitly recognize other human life that is not "in existence by actual birth"; that the definition of human life

160
is for the legislature and not the courts; that Art. 1196 "is more definite than the District of Columbia statute upheld in
[United States v.] Vuitch" ( 402 U.S. 62 ); and that the Texas statute "is [410 U.S. 113, 120] not vague and indefinite
or overbroad." A physician's abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof under the exemption of Art. 1196 "is not
before us." But see Veevers v. State, 172 Tex. Cr. R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962). Cf. United
States v. Vuitch, 402 U.S. 62, 69 -71 (1971).
[ Footnote 4 ] The name is a pseudonym.
[ Footnote 5 ] These names are pseudonyms.
[ Footnote 6 ] The appellee twice states in his brief that the hearing before the District Court was held on July 22, 1970.
Brief for Appellee 13. The docket entries, App. 2, and the transcript, App. 76, reveal this to be an error. The July date
appears to be the time of the reporter's transcription. See App. 77.
[ Footnote 7 ] We need not consider what different result, if any, would follow if Dr. Hallford's intervention were on
behalf of a class. His complaint in intervention does not purport to assert a class suit and makes no reference to any
class apart from an allegation that he "and others similarly situated" must necessarily guess at the meaning of Art. 1196.
His application for leave to intervene goes somewhat further, for it asserts that plaintiff Roe does not adequately protect
the interest of the doctor "and the class of people who are physicians . . . [and] the class of people who are . . . patients .
. . ." The leave application, however, is not the complaint. Despite the District Court's statement to the contrary, 314 F.
Supp., at 1225, we fail to perceive the essentials of a class suit in the Hallford complaint.
[ Footnote 8 ] A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor (hereinafter
Castiglioni).
[ Footnote 9 ] J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed. 1950) (hereinafter Ricci); L. Lader,
Abortion 75-77 (1966) (hereinafter Lader); K. Niswander, Medical Abortion Practices in the United States, in Abortion
and the Law 37, 38-40 (D. Smith ed. 1967); G. Williams, The Sanctity of Life and the Criminal Law 148 (1957)
(hereinafter Williams); J. Noonan, An Almost Absolute Value in History, in The Morality of Abortion 1, 3-7 (J.
Noonan ed. 1970) (hereinafter Noonan); Quay, Justifiable Abortion - Medical and Legal Foundations (pt. 2), 49 Geo.
L. J. 395, 406-422 (1961) (hereinafter Quay).
[ Footnote 10 ] L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see Castiglioni 227.
[ Footnote 11 ] Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
[ Footnote 12 ] Edelstein 13-14.
[ Footnote 13 ] Castiglioni 148.
[ Footnote 14 ] Id., at 154.
[ Footnote 15 ] Edelstein 3.
[ Footnote 16 ] Id., at 12, 15-18.
[ Footnote 17 ] Id., at 18; Lader 76.
[ Footnote 18 ] Edelstein 63.
[ Footnote 19 ] Id., at 64.
[ Footnote 20 ] Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
[ Footnote 21 ] E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31, 16 (4th ed. 1762); 1 W.
Blackstone, Commentaries *129-130; M. Hale, Pleas of the Crown 433 (1st Amer. ed. 1847). For discussions of the
role of the quickening concept in English common law, see Lader 78; Noonan 223-226; Means, The Law of New [410
U.S. 113, 133] York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of
Constitutionality (pt. 1), 14 N. Y. L. F. 411, 418-428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the
Law, 59 J. Crim. L. C. & P. S. 84 (1968) (hereinafter Stern); Quay 430-432; Williams 152.
[ Footnote 22 ] Early philosophers believed that the embryo or fetus did not become formed and begin to live until at
least 40 days after conception for a male, and 80 to 90 days for a female. See, for example, Aristotle, Hist. Anim.
7.3.583b; Gen. Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat. Puer., No. 10. Aristotle's thinking derived from his
three-stage theory of life: vegetable, animal, rational. The vegetable stage was reached at conception, the animal at
"animation," and the rational soon after live birth. This theory, together with the 40/80 day view, came to be accepted
by early Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who made a distinction between embryo
inanimatus, not yet endowed with a soul, and embryo animatus. He may have drawn upon Exodus 21:22. At one point,
however, he expressed the view that human powers cannot determine the point during fetal development at which the
critical change occurs. See Augustine, De Origine Animae 4.4 (Pub. Law 44.527). See also W. Reany, The Creation of
the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America,
Canon Law Studies No. 162, Washington, D.C., 1942).
Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay 426-427.
Later, Augustine on abortion was incorporated by Gratian into the Decretum, published about 1140. Decretum Magistri
Gratiani 2.32.2.7 to 2.32.2.10, [410 U.S. 113, 134] in 1 Corpus Juris Canonici 1122, 1123 (A. Friedburg, 2d ed. 1879).
This Decretal and the Decretals that followed were recognized as the definitive body of canon law until the new Code
of 1917.
For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan 20-26; Quay 426-430; see also J.
Noonan, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965).

161
[ Footnote 23 ] Bracton took the position that abortion by blow or poison was homicide "if the foetus be already formed
and animated, and particularly if it be animated." 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss
ed. 1879), or, as a later translation puts it, "if the foetus is already formed or quickened, especially if it is quickened," 2
H. Bracton, On the Laws and Customs of England 341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61
(Book 1, c. 23) (Selden Society ed. 1955).
[ Footnote 24 ] E. Coke, Institutes III *50.
[ Footnote 25 ] 1 W. Blackstone, Commentaries *129-130.
[ Footnote 26 ] Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to
Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y. L. F.
335 (1971) (hereinafter Means II). The author examines the two principal precedents cited marginally by Coke, both
contrary to his dictum, and traces the treatment of these and other cases by earlier commentators. He concludes that
Coke, who himself participated as an advocate in an abortion case in 1601, may have intentionally misstated the law.
The author even suggests a reason: Coke's strong feelings against abortion, coupled with his determination to assert
common-law (secular) jurisdiction to assess penalties for an offense that traditionally had been an exclusively
ecclesiastical or canon-law crime. See also Lader 78-79, who notes that some scholars doubt that the common law ever
was applied to abortion; that the English ecclesiastical courts seem to have lost interest in the problem after 1527; and
that the preamble to the English legislation of 1803, 43 Geo. 3, c. 58, 1, referred to in the text, infra, at 136, states that
"no adequate means have been hitherto provided for the prevention and punishment of such offenses."
[ Footnote 27 ] Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263,
265-266 (1845); State v. Cooper, 22 N. J. L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v.
Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. [410 U.S.
113, 136] 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v.
State, 79 Neb. 251, 252, 112 N. W. 611, 612 (1907); Gray v. State, 77 Tex. Cr. R. 221, 224, 178 S. W. 337, 338 (1915);
Miller v. Bennett, 190 Va. 162, 169, 56 S. E. 2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633
(1850); State v. Slagle, 83 N.C. 630, 632 (1880).
[ Footnote 28 ] See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N. Y. 86, 88 (1872); Lamb v. State, 67
Md. 524, 533, 10 A. 208 (1887).
[ Footnote 29 ] Conn. Stat., Tit. 20, 14 (1821).
[ Footnote 30 ] Conn. Pub. Acts, c. 71, 1 (1860).
[ Footnote 31 ] N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, 9, p. 661, and Tit. 6, 21, p. 694 (1829).
[ Footnote 32 ] Act of Jan. 20, 1840, 1, set forth in 2 H. Gammel, Laws of Texas 177-178 (1898); see Grigsby v. Reib,
105 Tex. 597, 600, 153 S. W. 1124, 1125 (1913).
[ Footnote 33 ] The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern 85-86; and Means II 375-
376.
[ Footnote 34 ] Criminal abortion statutes in effect in the States as of 1961, together with historical statutory
development and important judicial interpretations of the state statutes, are cited and quoted in Quay 447-520. See
Comment, A Survey of the Present Statutory and Case Law on Abortion: The Contradictions and the Problems, 1972
U. Ill. L. F. 177, 179, classifying the abortion statutes and listing 25 States as permitting abortion only if necessary to
save or preserve the mother's life.
[ Footnote 35 ] Ala. Code, Tit. 14, 9 (1958); D.C. Code Ann. 22-201 (1967).
[ Footnote 36 ] Mass. Gen. Laws Ann., c. 272, 19 (1970); N. J. Stat. Ann. 2A:87-1 (1969); Pa. Stat. Ann., Tit. 18, 4718,
4719 (1963).
[ Footnote 37 ] Fourteen States have adopted some form of the ALI statute. See Ark. Stat. Ann. 41-303 to 41-310
(Supp. 1971); Calif. Health & Safety Code 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. 40-2-50 to 40-2-53
(Cum. Supp. 1967); Del. Code Ann., Tit. 24, 1790-1793 (Supp. 1972); Florida Law of Apr. 13, 1972, c. 72-196, 1972
Fla. Sess. Law Serv., pp. 380-382; Ga. Code 26-1201 to 26-1203 (1972); Kan. Stat. Ann. 21-3407 (Supp. 1971); Md.
Ann. Code, Art. 43, 137-139 (1971); Miss. Code Ann. 2223 (Supp. 1972); N. M. Stat. Ann. 40A-5-1 to 40A-5-3
(1972); N.C. Gen. Stat. 14-45.1 (Supp. 1971); Ore. Rev. Stat. 435.405 to 435.495 (1971); S. C. Code Ann. 16-82 to 16-
89 (1962 and Supp. 1971); Va. Code Ann. 18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark described some of
these States as having "led the way." Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L. A.)
L. Rev. 1, 11 (1969).
By the end of 1970, four other States had repealed criminal penalties for abortions performed in early pregnancy by a
licensed physician, subject to stated procedural and health requirements. Alaska Stat. 11.15.060 (1970); Haw. Rev.
Stat. 453-16 (Supp. 1971); N. Y. Penal Code 125.05, subd. 3 (Supp. 1972-1973); Wash. Rev. Code 9.02.060 to
9.02.080 (Supp. 1972). The precise status of criminal abortion laws in some States is made unclear by recent decisions
in state and federal courts striking down existing state laws, in whole or in part.
[ Footnote 38 ] "Whereas, Abortion, like any other medical procedure, should not be performed when contrary to the
best interests of the patient [410 U.S. 113, 144] since good medical practice requires due consideration for the
patient's welfare and not mere acquiescence to the patient's demand; and
"Whereas, The standards of sound clinical judgment, which, together with informed patient consent should be
determinative according to the merits of each individual case; therefore be it

162
"RESOLVED, That abortion is a medical procedure and should be performed only by a duly licensed physician and
surgeon in an accredited hospital acting only after consultation with two other physicians chosen because of their
professional competency and in conformance with standards of good medical practice and the Medical Practice Act of
his State; and be it further
"RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates
his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act
violative of personally-held moral principles. In these circumstances good medical practice requires only that the
physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good
medical practice." Proceedings of the AMA House of Delegates 220 (June 1970).
[ Footnote 39 ] "The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion
that is performed in accordance with good medical practice and under circumstances that do not violate the laws of the
community in which he practices.
"In the matter of abortions, as of any other medical procedure, the Judicial Council becomes involved whenever there is
alleged violation of the Principles of Medical Ethics as established by the House of Delegates."
[ Footnote 40 ] "UNIFORM ABORTION ACT
"SECTION 1. [Abortion Defined; When Authorized.]
"(a) `Abortion' means the termination of human pregnancy with an intention other than to produce a live birth or to
remove a dead fetus.
"(b) An abortion may be performed in this state only if it is performed:
"(1) by a physician licensed to practice medicine [or osteopathy] in this state or by a physician practicing medicine [or
osteopathy] in the employ of the government of the United States or of this state, [and the abortion is performed [in the
physician's office or in a medical clinic, or] in a hospital approved by the [Department of Health] or operated by the
United States, this state, or any department, agency, or political subdivision of either;] or by a female upon herself upon
the advice of the physician; and
"(2) within 20. weeks after the commencement of the pregnancy [or after 20. weeks only if the physician has
reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of
the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with
grave physical or mental defect, or (iii) that [410 U.S. 113, 147] the pregnancy resulted from rape or incest, or illicit
intercourse with a girl under the age of 16 years].
"SECTION 2. [Penalty.] Any person who performs or procures an abortion other than authorized by this Act is guilty
of a [felony] and, upon conviction thereof, may be sentenced to pay a fine not exceeding [$1,000] or to imprisonment
[in the state penitentiary] not exceeding [5 years], or both.
"SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to effectuate its general purpose to make
uniform the law with respect to the subject of this Act among those states which enact it.
"SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.
"SECTION 5. [Severability.] If any provision of this Act or the application thereof to any person or circumstance is
held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without
the invalid provision or application, and to this end the provisions of this Act are severable.
"SECTION 6. [Repeal.] The following acts and parts of acts are repealed: "(1) "(2) "(3)
"SECTION 7. [Time of Taking Effect.] This Act shall take effect ________________."
[ Footnote 41 ] "This Act is based largely upon the New York abortion act following a review of the more recent laws
on abortion in several states and upon recognition of a more liberal trend in laws on this subject. Recognition was given
also to the several decisions in state and federal courts which show a further trend toward liberalization of abortion
laws, especially during the first trimester of pregnancy.
"Recognizing that a number of problems appeared in New York, a shorter time period for `unlimited' abortions was
advisable. The [410 U.S. 113, 148] time period was bracketed to permit the various states to insert a figure more in
keeping with the different conditions that might exist among the states. Likewise, the language limiting the place or
places in which abortions may be performed was also bracketed to account for different conditions among the states. In
addition, limitations on abortions after the initial `unlimited' period were placed in brackets so that individual states
may adopt all or any of these reasons, or place further restrictions upon abortions after the initial period.
"This Act does not contain any provision relating to medical review committees or prohibitions against sanctions
imposed upon medical personnel refusing to participate in abortions because of religious or other similar reasons, or the
like. Such provisions, while related, do not directly pertain to when, where, or by whom abortions may be performed;
however, the Act is not drafted to exclude such a provision by a state wishing to enact the same."
[ Footnote 42 ] See, for example, YWCA v. Kugler, 342 F. Supp. 1048, 1074 (N. J. 1972); Abele v. Markle, 342 F.
Supp. 800, 805-806 (Conn. 1972) (Newman, J., concurring in result), appeal docketed, No. 72-56; Walsingham v.
State, 250 So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N. J. L. 86, 90 (1881); Means II 381-
382.
[ Footnote 43 ] See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19 (1943).
[ Footnote 44 ] Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957, 967 (1970) (England and Wales);
Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health Service)
(New York City); Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family Planning 5, 7 (1970);

163
Tietze, Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan,
Czechoslovakia, Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152 (April
1961). Other sources are discussed in Lader 17-23.
[ Footnote 45 ] See Brief of Amicus National Right to Life Committee; R. Drinan, The Inviolability of the Right to be
Born, in Abortion and the Law 107 (D. Smith ed. 1967); Louisell, Abortion, The Practice of Medicine and the Due
Process of Law, 16 U. C. L. A. L. Rev. 233 (1969); Noonan 1.
[ Footnote 46 ] See, e. g., Abele v. Markle, 342 F. Supp. 800 (Conn. 1972), appeal docketed, No. 72-56.
[ Footnote 47 ] See discussions in Means I and Means II.
[ Footnote 48 ] See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858).
[ Footnote 49 ] Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v. State, 37 Tex. Cr. R. 552, 561, 40 S. W.
287, 290 (1897); Shaw v. State, 73 Tex. Cr. R. 337, 339, 165 S. W. 930, 931 (1914); Fondren v. State, 74 Tex. Cr. R.
552, 557, 169 S. W. 411, 414 (1914); Gray v. State, 77 Tex. Cr. R. 221, 229, 178 S. W. 337, 341 (1915). There is no
immunity in Texas for the father who is not married to the mother. Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W.
661 (1919); Thompson v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200.
[ Footnote 50 ] See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443, 450, 67 A. 2d 141, 144 (1949). A short
discussion of the modern law on this issue is contained in the Comment to the ALI's Model Penal Code 207.11, at 158
and nn. 35-37 (Tent. Draft No. 9, 1959).
[ Footnote 51 ] Tr. of Oral Rearg. 20-21.
[ Footnote 52 ] Tr. of Oral Rearg. 24.
[ Footnote 53 ] We are not aware that in the taking of any census under this clause, a fetus has ever been counted.
[ Footnote 54 ] When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a
dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception
always exists. The exception contained [410 U.S. 113, 158] in Art. 1196, for an abortion procured or attempted by
medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be
deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas
exception appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already
been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion
upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal
abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of
the Texas Penal Code. If the fetus is a person, may the penalties be different?
[ Footnote 55 ] Cf. the Wisconsin abortion statute, defining "unborn child" to mean "a human being from the time of
conception until it is born alive," Wis. Stat. 940.04 (6) (1969), and the new Connecticut Statute, Pub. Act No. 1 (May
1972 special session), declaring it to be the public policy of the State and the legislative intent "to protect and preserve
human life from the moment of conception."
[ Footnote 56 ] Edelstein 16.
[ Footnote 57 ] Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For a stricter view, see I.
Jakobovits, Jewish Views on Abortion, in Abortion and the Law 124 (D. Smith ed. 1967).
[ Footnote 58 ] Amicus Brief for the American Ethical Union et al. For the position of the National Council of
Churches and of other denominations, see Lader 99-101.
[ Footnote 59 ] L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland's Illustrated Medical
Dictionary 1689 (24th ed. 1965).
[ Footnote 60 ] Hellman & Pritchard, supra, n. 59, at 493.
[ Footnote 61 ] For discussions of the development of the Roman Catholic position, see D. Callahan, Abortion: Law,
Choice, and Morality 409-447 (1970); Noonan 1.
[ Footnote 62 ] See Brodie, The New Biology and the Prenatal Child, 9 J. Family L. 391, 397 (1970); Gorney, The New
Biology and the Future of Man, 15 U. C. L. A. L. Rev. 273 (1968); Note, Criminal Law - Abortion - The "Morning-
After Pill" and Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore. L. Rev. 211 (1967); G. Taylor, The
Biological Time Bomb 32 (1968); A. Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through a Test Tube
Darkly: Artificial Insemination and the Law, 67 Mich. L. Rev. 127 (1968): Note, Artificial Insemination and the Law,
1968 U. Ill. L. F. 203.
[ Footnote 63 ] W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts 1028-
1031 (1956); Note, 63 Harv. L. Rev. 173 (1949).
[ Footnote 64 ] See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Action for Death of Unborn Child, 15
A. L. R. 3d 992 (1967).
[ Footnote 65 ] Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Child: The Legal and Logical
Inconsistencies, 46 Notre Dame Law. 349, 354-360 (1971).
[ Footnote 66 ] Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U. C. L. A. L. Rev. 233,
235-238 (1969); Note, 56 Iowa L. Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame
Law. 349, 351-354 (1971).
[ Footnote 67 ] Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we discuss the father's rights, if any exist
in the constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the

164
Texas and the Georgia statutes on their face take no cognizance of the father. We are aware that some statutes
recognize the father under certain circumstances. North Carolina, for example, N.C. Gen. Stat. 14-45.1 (Supp. 1971),
requires written permission for the abortion from the husband when the woman is a married minor, that is, when she is
less than 18 years of age, 41 N.C. A. G. 489 (1971); if the woman is an unmarried minor, written permission from the
parents is required. We need not now decide whether provisions of this kind are constitutional.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to sound the death knell for the doctrine of
substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth
Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to the original
constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative
bodies, who are elected to pass laws." Id., at 730. 1
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a Connecticut birth control law
unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably
did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet,
the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the
Constitution. 2 So it was clear [410 U.S. 113, 168] to me then, and it is equally clear to me now, that the Griswold
decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty"
that is protected by the Due Process Clause of the Fourteenth Amendment. 3 As so understood, Griswold stands as one
in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.
"In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of
Regents v. Roth, 408 U.S. 564, 572 . The Constitution nowhere mentions a specific right of personal choice in matters
of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers
more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S.
232, 238 -239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390, 399 -400. Cf.
Shapiro v. Thompson, 394 U.S. 618, 629 -630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380
U.S. 89, 96 ; Aptheker v. Secretary of State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v. Sharpe,
347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41 . [410 U.S. 113, 169]
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be
found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty'
is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and
religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a
rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and
purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367
U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter,
"Great concepts like . . . `liberty' . . . were purposely left to gather meaning from experience. For they relate to the
whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a
stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646
(dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one
of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ;
Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v.
Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v.
Baird, 405 U.S. 438, 453 , we recognized "the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170] as the decision whether
to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her
pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the
interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of
significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of
Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390
(1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the
personal liberty protected by the Due Process Clause of the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more
complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in
Texas. The question then becomes whether the state interests advanced to justify this abridgment can survive the
"particularly careful scrutiny" that the Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the
potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate
abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more
stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the
Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment

165
of personal [410 U.S. 113, 171] liberty worked by the existing Texas law. Accordingly, I join the Court's opinion
holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment.
[ Footnote 1 ] Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at 733 .
[ Footnote 2 ] There is no constitutional right of privacy, as such. "[The Fourth] Amendment protects individual
privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with
privacy at all. Other provisions of [410 U.S. 113, 168] the Constitution protect personal privacy from other forms of
governmental invasion. But the protection of a person's general right to privacy - his right to be let alone by other
people - is, like the protection of his property and of his very life, left largely to the law of the individual States." Katz
v. United States, 389 U.S. 347, 350 -351 (footnotes omitted).
[ Footnote 3 ] This was also clear to Mr. Justice Black, 381 U.S., at 507 (dissenting opinion); to Mr. Justice Harlan, 381
U.S., at 499 (opinion concurring in the judgment); and to MR. JUSTICE WHITE, 381 U.S., at 502 (opinion concurring
in the judgment). See also Mr. Justice Harlan's thorough and thoughtful opinion dissenting from dismissal of the appeal
in Poe v. Ullman, 367 U.S. 497, 522 .
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal
scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with
those parts of it that invalidate the Texas statute in question, and therefore dissent.
I
The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the
first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff
who was in her first trimester of pregnancy at some time during the pendency of her law-suit. While a party may
vindicate his own constitutional rights, he may not seek vindication for the rights of others. Moose Lodge v. Irvis, 407
U.S. 163 (1972); Sierra Club v. Morton, 405 U.S. 727 (1972). The Court's statement of facts in this case makes clear,
however, that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the
time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last
trimester of pregnancy as of the date the complaint was filed.
Nothing in the Court's opinion indicates that Texas might not constitutionally apply its proscription of abortion as
written to a woman in that stage of pregnancy. Nonetheless, the Court uses her complaint against the Texas statute as a
fulcrum for deciding that States may [410 U.S. 113, 172] impose virtually no restrictions on medical abortions
performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the
longstanding admonition that it should never "formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied." Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of
Emigration, 113 U.S. 33, 39 (1885). See also Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring).
II
Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a
conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of
"privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by
a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the
ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from
searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as
embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).
If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state
regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no
doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the
statement of MR. JUSTICE STEWART in his concurring opinion that the "liberty," against deprivation of which
without due process the Fourteenth [410 U.S. 113, 173] Amendment protects, embraces more than the rights found in
the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due
process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such
as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491
(1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on
legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's
life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the
test stated in Williamson, supra. But the Court's sweeping invalidation of any restrictions on abortion during the first
trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's
opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial
one.
The Court eschews the history of the Fourteenth Amendment in its reliance on the "compelling state interest" test. See
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 179 (1972) (dissenting opinion). But the Court adds a new
wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the
Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I
misapprehend the consequences of this transplanting of the "compelling state interest test," the Court's opinion will

166
accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it. [410 U.S. 113,
174]
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 74
(1905), the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in
Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the
adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies
and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward
may or may not be "compelling." The decision here to break pregnancy into three distinct terms and to outline the
permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does
of a determination of the intent of the drafters of the Fourteenth Amendment.
The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on
abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so
rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291
U.S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is
evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was
apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly
with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of
the Fourteenth [410 U.S. 113, 175] Amendment in 1868, there were at least 36 laws enacted by state or territorial
legislatures limiting abortion. 1 While many States have amended or updated [410 U.S. 113, 176] their laws, 21 of the
laws on the books in 1868 remain in effect today. 2 Indeed, the Texas statute struck down today was, as the majority
notes, first enacted in 1857 [410 U.S. 113, 177] and "has remained substantially unchanged to the present time." Ante,
at 119.
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the
Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend
to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
III
Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive
constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to
justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of
pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is
that a statute found [410 U.S. 113, 178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a
whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the
Court. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Street v. New York, 394 U.S. 576 (1969).
For all of the foregoing reasons, I respectfully dissent.
[ Footnote 1 ] Jurisdictions having enacted abortion laws prior to the adoption of the Fourteenth Amendment in 1868:
1. Alabama - Ala. Acts, c. 6, 2 (1840).
2. Arizona - Howell Code, c. 10, 45 (1865).
3. Arkansas - Ark. Rev. Stat., c. 44, div. III, Art. II, 6 (1838).
4. California - Cal. Sess. Laws, c. 99, 45, p. 233 (1849-1850).
5. Colorado (Terr.) - Colo. Gen. Laws of Terr. of Colo., 1st Sess., 42, pp. 296-297 (1861).
6. Connecticut - Conn. Stat., Tit. 20, 14, 16 (1821). By 1868, this statute had been replaced by another abortion law.
Conn. Pub. Acts, c. 71, 1, 2, p. 65 (1860).
7. Florida - Fla. Acts 1st Sess., c. 1637, subc. 3, 10, 11, subc. 8, 9, 10, 11 (1868), as amended, now Fla. Stat. Ann.
782.09, 782.10, 797.01, 797.02, 782.16 (1965).
8. Georgia - Ga. Pen. Code, 4th Div., 20 (1833).
9. Kingdom of Hawaii - Hawaii Pen. Code, c. 12, 1, 2, 3 (1850).
10. Idaho (Terr.) - Idaho (Terr.) Laws, Crimes and Punishments 33, 34, 42, pp. 441, 443 (1863).
11. Illinois - Ill. Rev. Criminal Code 40, 41, 46, pp. 130, 131 (1827). By 1868, this statute had been replaced by a
subsequent enactment. Ill. Pub. Laws 1, 2, 3, p. 89 (1867).
12. Indiana - Ind. Rev. Stat. 1, 3, p. 224 (1838). By 1868 this statute had been superseded by a subsequent enactment.
Ind. Laws, c. LXXXI, 2 (1859).
13. Iowa (Terr.) - Iowa (Terr.) Stat., 1st Legis., 1st Sess., 18, p. 145 (1838). By 1868, this statute had been superseded
by a subsequent enactment. Iowa (Terr.) Rev. Stat., c. 49, 10, 13 (1843).
14. Kansas (Terr.) - Kan. (Terr.) Stat., c. 48, 9, 10, 39 (1855). By 1868, this statute had been superseded by a
subsequent enactment. Kan. (Terr.) Laws, c. 28, 9, 10, 37 (1859).
15. Louisiana - La. Rev. Stat., Crimes and Offenses 24, p. 138 (1856).
16. Maine - Me. Rev. Stat., c. 160, 11, 12, 13, 14 (1840).
17. Maryland - Md. Laws, c. 179, 2, p. 315 (1868).
18. Massachusetts - Mass. Acts & Resolves, c. 27 (1845).
19. Michigan - Mich. Rev. Stat., c. 153, 32, 33, 34, p. 662 (1846). [410 U.S. 113, 176] 20. Minnesota (Terr.) - Minn.
(Terr.) Rev. Stat., c. 100, 10, 11, p. 493 (1851).

167
21. Mississippi - Miss. Code, c. 64, 8, 9, p. 958 (1848).
22. Missouri - Mo. Rev. Stat., Art. II, 9, 10, 36, pp. 168, 172 (1835).
23. Montana (Terr.) - Mont. (Terr.) Laws, Criminal Practice Acts 41, p. 184 (1864).
24. Nevada (Terr.) - Nev. (Terr.) Laws, c. 28, 42, p. 63 (1861).
25. New Hampshire - N. H. Laws, c. 743, 1, p. 708 (1848).
26. New Jersey - N. J. Laws, p. 266 (1849).
27. New York - N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, 8, 9, pp. 12-13 (1828). By 1868, this statute had been superseded. N.
Y. Laws, c. 260, 1-6, pp. 285-286 (1845); N. Y. Laws, c. 22, 1, p. 19 (1846).
28. Ohio - Ohio Gen. Stat. 111 (1), 112 (2), p. 252 (1841).
29. Oregon - Ore. Gen. Laws, Crim. Code, c. 43, 509, p. 528 (1845-1864).
30. Pennsylvania - Pa. Laws No. 374, 87, 88, 89 (1860).
31. Texas - Tex. Gen. Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White 1859).
32. Vermont - Vt. Acts No. 33, 1 (1846). By 1868, this statute had been amended. Vt. Acts No. 57, 1, 3 (1867).
33. Virginia - Va. Acts, Tit. II, c. 3, 9, p. 96 (1848).
34. Washington (Terr.) - Wash. (Terr.) Stats., c. II, 37, 38, p. 81 (1854).
35. West Virginia - See Va. Acts., Tit. II, c. 3, 9, p. 96 (1848); W. Va. Const., Art. XI, par. 8 (1863).
36. Wisconsin - Wis. Rev. Stat., c. 133, 10, 11 (1849). By 1868, this statute had been superseded. Wis. Rev. Stat., c.
164, 10, 11; c. 169, 58, 59 (1858).
[ Footnote 2 ] Abortion laws in effect in 1868 and still applicable as of August 1970:
1. Arizona (1865). 2. Connecticut (1860). 3. Florida (1868). 4. Idaho (1863). 5. Indiana (1838). [410 U.S. 113, 177] 6.
Iowa (1843). 7. Maine (1840). 8. Massachusetts (1845). 9. Michigan (1846). 10. Minnesota (1851). 11. Missouri
(1835). 12. Montana (1864). 13. Nevada (1861). 14. New Hampshire (1848). 15. New Jersey (1849). 16. Ohio (1841).
17. Pennsylvania (1860). 18. Texas (1859). 19. Vermont (1867). 20. West Virginia (1863). 21. Wisconsin (1858). [410
U.S. 113, 179]

MISSING CASES: 1. Tablarin v. Gutierrez 152 SCRA 370 (1987)

2. Garcia v. Exec Sec 211 SCRA 219 (1992)

168