PoliRev | PIL Assignment No.
1|1
DOCTRINE OF INCORPORATION
1. G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR.
ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, &
DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C.
VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant
is mother's milk. There is nothing greater than for a mother to nurture her beloved child
straight from her bosom. The ideal is, of course, for each and every Filipino child to enjoy
the unequaled benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to
nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules
and Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code,"
Relevant International Agreements, Penalizing Violations Thereof, and for Other
Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that
are not constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant
Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH is
deemed impleaded as a co-respondent since respondents issued the questioned RIRR in
their capacity as officials of said executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October
28, 1986 by virtue of the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code states that the law seeks to
give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes
(ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to
2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health
claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child.
Article 24 of said instrument provides that State Parties should take appropriate measures
to diminish infant and child mortality, and ensure that all segments of society, specially
parents and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,
2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers
of breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary
Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted
without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating
the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents
from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on
June 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5,
2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part of
the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process
clause and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002
Global Strategy on Infant and Young Child Feeding;" and (3) various World Health
Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in- First, the Court will determine if pertinent international instruments adverted to by
interest, the Court adopts the view enunciated in Executive Secretary v. Court of respondents are part of the law of the land.
Appeals,4 to wit:
The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its members. An
association has standing to file suit for its workers despite its lack of direct
interest if its members are affected by the action. An organization has standing to
assert the concerns of its constituents.
x xxx
x xx We note that, under its Articles of Incorporation, the respondent was organized x xx
to act as the representative of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and its members
are in every practical sense identical. x xx The respondent [association] is but the
medium through which its individual members seek to make more effective the
expression of their voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in PurokBagongSilang Association, Inc. v. Yuipco,6 where the Court
ruled that an association has the legal personality to represent its members because the
results of the case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like
in Executive Secretary, that the association is formed "to represent directly or through
approved representatives the pharmaceutical and health care industry before the Philippine
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Government and any of its agencies, the medical professions and the general
public."8 Thus, as an organization, petitioner definitely has an interest in fulfilling its
avowed purpose of representing members who are part of the pharmaceutical and health
care industry. Petitioner is duly authorized9 to take the appropriate course of action to
bring to the attention of government agencies and the courts any grievance suffered by its
members which are directly affected by the RIRR. Petitioner, which is mandated by its
Amended Articles of Incorporation to represent the entire industry, would be remiss in its
duties if it fails to act on governmental action that would affect any of its industry
members, no matter how few or numerous they are. Hence, petitioner, whose legal
identity is deemed fused with its members, should be considered as a real party-in-interest
which stands to be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code,
thereby amending and expanding the coverage of said law. The defense of the DOH is that
the RIRR implements not only the Milk Code but also various international
instruments10 regarding infant and young child nutrition. It is respondents' position that
said international instruments are deemed part of the law of the land and therefore the
DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents,
namely: (1) The United Nations Convention on the Rights of the Child; (2) The
International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on
the Elimination of All Forms of Discrimination Against Women, only provide in general
terms that steps must be taken by State Parties to diminish infant and child mortality and
inform society of the advantages of breastfeeding, ensure the health and well-being of
families, and ensure that women are provided with services and nutrition in connection
with pregnancy and lactation. Said instruments do not contain specific provisions regarding
the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk
substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation.11 The transformation method requires
that an international law be transformed into a domestic law through a constitutional

mechanism such as local legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the force of domestic law. 12
Treaties become part of the law of the land through transformation pursuant to Article
VII, Section 21 of the Constitution which provides that "[n]o treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the
members of the Senate." Thus, treaties or conventional international law must go through
a process prescribed by the Constitution for it to be transformed into municipal law that
can be applied to domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at
least two-thirds of all members of the Senate as required under Section 21, Article VII of
the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that
has the force and effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize
at this point that the Code did not adopt the provision in the ICMBS absolutely
prohibiting advertising or other forms of promotion to the general public of products
within the scope of the ICMBS. Instead, the Milk Code expressly provides that
advertising, promotion, or other marketing materials may be allowed if such
materials are duly authorized and approved by the Inter-Agency Committee
(IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity
with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
x xxx
[G]enerally accepted principles of international law, by virtue of the incorporation clause of
the Constitution, form part of the laws of the land even if they do not derive from treaty Duration therefore is not the most important element. More important is the consistency
obligations. The classical formulation in international law sees those customary rules and the generality of the practice. x xx
accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element x xxx
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known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or customary
international law which are binding on all states,17 i.e., renunciation of war as an
instrument of national policy, the principle of sovereign immunity, 18 a person's right to life,
liberty and due process,19 and pactasunt servanda,20 among others. The concept of
"generally accepted principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary
source of international law because they have the "character of jus rationale" and are
"valid through all kinds of human societies."(Judge Tanaka in his dissenting opinion in
the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples
are part of international law because they are "basic to legal systems generally" and
hence part of the jus gentium. These principles, he believes, are established by a
process of reasoning based on the common identity of all legal systems. If there should be
doubt or disagreement, one must look to state practice and determine whether the
municipal law principle provides a just and acceptable solution. x xx 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opiniojuris]." (Restatement) This
statement contains the two basic elements of custom: the material factor, that is,
how states behave, and the psychological or subjective factor, that is, why they
behave the way they do.
x xxx
The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of
states.
The required duration can be either short or long. x xx
 PoliRev | PIL Assignment No. 1|4

Once the existence of state practice has been established, it becomes necessary to death and public health practices; (c) standards with respect to diagnostic procedures for
determine why states behave the way they do. Do states behave the way they do international use; (d) standards with respect to the safety, purity and potency of biological,
because they consider it obligatory to behave thus or do they do it only as a matter pharmaceutical and similar products moving in international commerce; (e) advertising
of courtesy? Opiniojuris, or the belief that a certain form of behavior is obligatory, and labeling of biological, pharmaceutical and similar products moving in international
is what makes practice an international rule. Without it, practice is not commerce.
law.22(Underscoring and Emphasis supplied)
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Clearly, customary international law is deemed incorporated into our domestic system. 23 Members after due notice has been given of their adoption by the Health Assembly except
for such Members as may notify the Director-General of rejection or reservations within the
WHA Resolutions have not been embodied in any local legislation. Have they attained the period stated in the notice. (Emphasis supplied)
status of customary law and should they then be deemed incorporated as part of the law of
the land? On the other hand, under Article 23, recommendations of the WHA do not come
into force for members, in the same way that conventions or agreements under Article
The World Health Organization (WHO) is one of the international specialized agencies allied 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution
with the United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN reads:
Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of
the WHO,26 and has the power to adopt regulations concerning "advertising and labeling of Article 23. The Health Assembly shall have authority to make recommendations to
biological, pharmaceutical and similar products moving in international commerce," 27and to Members with respect to any matter within the competence of the Organization. (Emphasis
"make recommendations to members with respect to any matter within the competence of supplied)
the Organization."28 The legal effect of its regulations, as opposed to recommendations, is
quite different. The absence of a provision in Article 23 of any mechanism by which the recommendation
would come into force for member states is conspicuous.
Regulations, along with conventions and agreements, duly adopted by the WHA bind
member states thus: The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations
are generally not binding, but they "carry moral and political weight, as they constitute the
Article 19. The Health Assembly shall have authority to adopt conventions or agreements judgment on a health issue of the collective membership of the highest international body
with respect to any matter within the competence of the Organization. A two-thirds vote of in the field of health."29 Even the ICMBS itself was adopted as a mere recommendation, as
the Health Assembly shall be required for the adoption of such conventions or WHA Resolution No. 34.22 states:
agreements, which shall come into force for each Member when accepted by it in
accordance with its constitutional processes. "The Thirty-Fourth World Health Assembly x xx adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to
Article 20. Each Member undertakes that it will, within eighteen months after the the present resolution." (Emphasis supplied)
adoption by the Health Assembly of a convention or agreement, take action relative to
the acceptance of such convention or agreement. Each Member shall notify the The Introduction to the ICMBS also reads as follows:
Director-General of the action taken, and if it does not accept such convention or
agreement within the time limit, it will furnish a statement of the reasons for non- In January 1981, the Executive Board of the World Health Organization at its sixty-seventh
acceptance. In case of acceptance, each Member agrees to make an annual report to the session, considered the fourth draft of the code, endorsed it, and unanimously
Director-General in accordance with Chapter XIV. recommended to the Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation rather than a
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) regulation. x xx (Emphasis supplied)
sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect to diseases, causes of

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the
WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions
urging member states to implement the ICMBS are merely recommendatory and legally
non-binding. Thus, unlike what has been done with the ICMBS whereby the
legislature enacted most of the provisions into law which is the Milk Code, the
subsequent WHA Resolutions,30 specifically providing for exclusive breastfeeding
from 0-6 months, continued breastfeeding up to 24 months, and absolutely
prohibiting advertisements and promotions of breastmilk substitutes, have not
been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms,
principles and practices that influence state behavior.31
"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice. 32 It is, however, an
expression of non-binding norms, principles, and practices that influence state
behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this
category.34 The most notable is the UN Declaration of Human Rights, which this Court has
enforced in various cases, specifically, Government of Hongkong Special Administrative
Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc.. 38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the
UN with the mandate to promote and protect intellectual property worldwide, has resorted
to soft law as a rapid means of norm creation, in order "to reflect and respond to the
changing needs and demands of its constituents."39 Other international organizations which
have resorted to soft law include the International Labor Organization and the Food and
Agriculture Organization (in the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe Acute
Respiratory Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on
WHO member states, it provides an excellent example of the power of "soft law"
in international relations. International lawyers typically distinguish binding rules
of international law-"hard law"-from non-binding norms, principles, and practices
PoliRev | PIL Assignment No. 1|5
that influence state behavior-"soft law." WHO has during its existence generated
many soft law norms, creating a "soft law regime" in international governance for
public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the political
groundwork for improved international cooperation on infectious diseases. These
resolutions clearly define WHO member states' normative duty to cooperate fully with
other countries and with WHO in connection with infectious disease surveillance and
response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS
epidemic, the duty is powerful politically for two reasons. First, the SARS outbreak
has taught the lesson that participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x xx if this warning is heeded, the
"soft law" in the SARS and IHR Resolution could inform the development of general and
consistent state practice on infectious disease surveillance and outbreak response, perhaps
crystallizing eventually into customary international law on infectious disease prevention
and control.41
In the Philippines, the executive department implemented certain measures recommended
by WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.)
No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various
departments broad powers to close down schools/establishments, conduct health
surveillance and monitoring, and ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a
state to implement the IHR Resolution was still considered not binding or enforceable,
although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it
must be established that such rule is being followed by states because they consider it
obligatory to comply with such rules (opiniojuris). Respondents have not presented any
evidence to prove that the WHA Resolutions, although signed by most of the member
states, were in fact enforced or practiced by at least a majority of the member states;
neither have respondents proven that any compliance by member states with said WHA
Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are
customary international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions
into domestic law. The provisions of the WHA Resolutions cannot be considered as
 PoliRev | PIL Assignment No. 1|6

part of the law of the land that can be implemented by executive agencies In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges
without the need of a law enacted by the legislature. the following:

Second, the Court will determine whether the DOH may implement the provisions of the 1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its
WHA Resolutions by virtue of its powers and functions under the Revised Administrative coverage to "young children" or those from ages two years old and beyond:
Code even in the absence of a domestic law.
MILK CODE RIRR
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the
DOH shall define the national health policy and implement a national health plan within WHEREAS, in order to ensure that Section 2. Purpose – These
the framework of the government's general policies and plans, and issue orders and safe and adequate nutrition for Revised Rules and Regulations are
regulations concerning the implementation of established health policies. infants is provided, there is a need hereby promulgated to ensure the
to protect and promote provision of safe and adequate
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of breastfeeding and to inform the nutrition for infants and young
promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted public about the proper use of children by the promotion,
as part of the national health policy. breastmilk substitutes and protection and support of
supplements and related products breastfeeding and by ensuring the
Respondents submit that the national policy on infant and young child feeding is embodied through adequate, consistent and proper use of breastmilk
in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared objective information and substitutes, breastmilk
the following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of appropriate regulation of the supplements and related products
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up marketing and distribution of the when these are medically
to two years and beyond; (2) appropriate complementary feeding, which is to start at age said substitutes, supplements and indicated and only when
six months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the related products; necessary, on the basis of
exercise of other feeding options; and (6) feeding in exceptionally difficult circumstances. adequate information and through
Indeed, the primacy of breastfeeding for children is emphasized as a national health SECTION 4(e). "Infant" means a appropriate marketing and
policy. However, nowhere in A.O. No. 2005-0014 is it declared that as part of such person falling within the age bracket distribution.
health policy, the advertisement or promotion of breastmilk substitutes should be of 0-12 months.
absolutely prohibited. Section 5(ff). "Young Child" means
a person from the age of more than
The national policy of protection, promotion and support of breastfeeding cannot twelve (12) months up to the age of
automatically be equated with a total ban on advertising for breastmilk substitutes. three (3) years (36 months).

In view of the enactment of the Milk Code which does not contain a total ban on the
2. The Milk Code recognizes that infant formula may be a proper and possible substitute
advertising and promotion of breastmilk substitutes, but instead, specifically creates an
for breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for
IAC which will regulate said advertising and promotion, it follows that a total ban policy
infants from 0-6 months" and declares that "there is no substitute nor replacement for
could be implemented only pursuant to a law amending the Milk Code passed by the
breastmilk":
constitutionally authorized branch of government, the legislature.

MILK CODE RIRR

Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Resolutions, can be validly implemented by the DOH through the subject RIRR.
WHEREAS, in order to ensure that Section 4. Declaration of
Third, the Court will now determine whether the provisions of the RIRR are in accordance safe and adequate nutrition Principles – The following are the
with those of the Milk Code. for infants is provided, there is a underlying principles from which
 PoliRev | PIL Assignment No. 1|7

need to protect and promote the revised rules and regulations breastmilk substitutes and/or
breastfeeding and to inform the are premised upon: replacements, as well as related products
public about the proper use of covered within the scope of this Code.
breastmilk substitutes and a. Exclusive breastfeeding is for
supplements and related infants from 0 to six (6) months. Section 13. "Total Effect" - Promotion of
products through adequate, products within the scope of this Code must
consistent and objective information b. There is no substitute or be objective and should not equate or
and appropriate regulation of the replacement for breastmilk. make the product appear to be as good or
marketing and distribution of the equal to breastmilk or breastfeeding in the
said substitutes, supplements and advertising concept. It must not in any
related products; case undermine breastmilk or
breastfeeding. The "total effect" should not
3. The Milk Code only regulates and does not impose unreasonable requirements for directly or indirectly suggest that buying
advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk their product would produce better
substitutes intended for infants from 0-24 months old or beyond, and forbids the use of individuals, or resulting in greater love,
health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in intelligence, ability, harmony or in any
the promotion of products within the scope of the Code, is vague: manner bring better health to the baby or
other such exaggerated and
MILK CODE RIRR unsubstantiated claim.

SECTION 6. The General Section 4. Declaration of Principles – Section 15. Content of Materials. - The
Public and Mothers. – The following are the underlying principles following shall not be included in
advertising, promotional and marketing
from which the revised rules and
(a) No advertising, promotion regulations are premised upon: materials:
or other marketing materials,
a. Texts, pictures, illustrations or
whether written, audio or x xxx
information which discourage or tend to
visual, for products within the
scope of this Code shall be f. Advertising, promotions, or sponsor- undermine the benefits or superiority of
printed, published, ships of infant formula, breastmilk breastfeeding or which idealize the use of
breastmilk substitutes and milk
distributed, exhibited and substitutes and other related products are
supplements. In this connection, no
broadcast unless such prohibited.
pictures of babies and children together
materials are duly authorized
and approved by an inter- Section 11. Prohibition – No advertising, with their mothers, fathers, siblings,
agency committee created promotions, sponsorships, or marketing grandparents, other relatives or caregivers
(or yayas) shall be used in any
herein pursuant to the materials and activities for breastmilk
advertisements for infant formula and
applicable standards provided substitutes intended for infants and young
children up to twenty-four (24) breastmilk supplements;
for in this Code.
months, shall be allowed, because they
tend to convey or give subliminal messages b. The term "humanized," "maternalized,"
or impressions that undermine breastmilk "close to mother's milk" or similar words in
and breastfeeding or otherwise exaggerate describing breastmilk substitutes or milk
 PoliRev | PIL Assignment No. 1|8

supplements; and product shall be used only

on the advice of a health
c. Pictures or texts that idealize the use of (iv) instructions for appropriate preparation, worker as to the need for
infant and milk formula. and a warning against the health hazards of its use and the proper
inappropriate preparation. methods of use;
Section 16. All health and nutrition claims
for products within the scope of the Code (e) Instructions for
are absolutely prohibited. For this purpose, appropriate prepara-tion,
any phrase or words that connotes to and a warning against the
increase emotional, intellectual abilities of health hazards of
the infant and young child and other like inappropriate preparation;
phrases shall not be allowed. and

4. The RIRR imposes additional labeling requirements not found in the Milk Code: (f) The health hazards of
unnecessary or improper
MILK CODE RIRR use of infant formula and
other related products
SECTION 10. Containers/Label. – Section 26. Content – including information that
Each container/label shall powdered infant formula
(a) Containers and/or labels shall be designed contain such message, in may contain pathogenic
to provide the necessary information about the both Filipino and English microorganisms and must
appropriate use of the products, and in such a languages, and which be prepared and used
way as not to discourage breastfeeding. message cannot be readily appropriately.
separated therefrom,
(b) Each container shall have a clear, relative the following 5. The Milk Code allows dissemination of information on infant formula to health
conspicuous and easily readable and points: professionals; the RIRR totally prohibits such activity:
understandable message in Pilipino or English
printed on it, or on a label, which message can (a) The words or phrase MILK CODE RIRR
not readily become separated from it, and "Important Notice" or
which shall include the following points: "Government Warning" or SECTION 7. Health Care System. – Section 22. No
their equivalent; manufacturer, distributor,
(i) the words "Important Notice" or their (b) No facility of the health care system shall be or representatives of
equivalent; (b) A statement of the used for the purpose of promoting infant products covered by the
superiority of formula or other products within the scope of Code shall be allowed to
(ii) a statement of the superiority of breastfeeding; this Code. This Code does not, however, conduct or be involved
breastfeeding; preclude the dissemination of information to in any activity on
(c) A statement that there health professionals as provided in Section breastfeeding promotion,
(iii) a statement that the product shall be used is no substitute for 8(b). education and production
only on the advice of a health worker as to the breastmilk; of Information, Education
need for its use and the proper methods of use; SECTION 8. Health Workers. - and Communication (IEC)
(d) A statement that the materials on
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(b) Information provided by manufacturers and breastfeeding, holding of
distributors to health professionals regarding or participating as
products within the scope of this Code shall be speakers in classes or
restricted to scientific and factual matters and seminars for women and
such information shall not imply or create a children activities and to
belief that bottle-feeding is equivalent or avoid the use of these
superior to breastfeeding. It shall also include venues to market their
the information specified in Section 5(b). brands or company
names.
SECTION 16. All health
and nutrition claims for
products within the scope
of the Code are absolutely
prohibited. For this
purpose, any phrase or
words that connotes to
increase emotional,
intellectual abilities of the
infant and young child and
other like phrases shall
not be allowed.
accordance with the representatives of products covered by the Code
rules and regulations shall be allowed to conduct or be involved in any
promulgated by the activity on breastfeeding promotion, education
Ministry of Health. and production of Information, Education and
Communication (IEC) materials on
breastfeeding, holding of or participating as
speakers in classes or seminars for women and
children activitiesand to avoid the use of these
venues to market their brands or company
names.
SECTION 32. Primary Responsibility of
Health Workers - It is the primary responsibility
of the health workers to promote, protect and
support breastfeeding and appropriate infant and
young child feeding. Part of this responsibility is
to continuously update their knowledge and skills
on breastfeeding. No assistance, support, logistics
or training from milk companies shall be
permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in MILK CODE RIRR
research and continuing education of health professionals; RIRR absolutely forbids the
same. SECTION 6. The General Section 51. Donations Within the Scope
Public and Mothers. – of This Code - Donations of products,
MILK CODE RIRR materials, defined and covered under the Milk
(f) Nothing herein Code and these implementing rules and
SECTION 8. Health Section 4. Declaration of Principles – contained shall prevent regulations, shall be strictly prohibited.
Workers – donations from
The following are the underlying principles from manufacturers and Section 52. Other Donations By Milk
(e) Manufacturers and which the revised rules and regulations are distributors of products Companies Not Covered by this Code. -
distributors of premised upon: within the scope of this Donations of products, equipments, and the
products within the Code upon request by or like, not otherwise falling within the scope of
scope of this i. Milk companies, and their with the approval of the this Code or these Rules, given by milk
Code may assist in the representatives, should not form part of any Ministry of Health. companies and their agents, representatives,
research, scholarships policymaking body or entity in relation to the whether in kind or in cash, may only be
and continuing advancement of breasfeeding. coursed through the Inter Agency Committee
education, of health (IAC), which shall determine whether such
professionals, in SECTION 22. No manufacturer, distributor, or

donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE RIRR
Section 46. Administrative Sanctions. –
The following administrative sanctions shall
be imposed upon any person, juridical or
natural, found to have violated the
provisions of the Code and its implementing
Rules and Regulations:
a) 1st violation – Warning;
b) 2nd violation – Administrative fine of a
minimum of Ten Thousand (P10,000.00) to
Fifty Thousand (P50,000.00) Pesos,
depending on the gravity and extent of the
violation, including the recall of the
offending product;
c) 3rd violation – Administrative Fine of a
minimum of Sixty Thousand (P60,000.00) to
One Hundred Fifty Thousand (P150,000.00)
Pesos, depending on the gravity and extent
of the violation, and in addition thereto, the
recall of the offending product, and
suspension of the Certificate of Product
Registration (CPR);
d) 4th violation –Administrative Fine of a
minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos, depending
on the gravity and extent of the violation;
and in addition thereto, the recall of the
PoliRev | PIL Assignment No. 1|10
product, revocation of the CPR, suspension
of the License to Operate (LTO) for one
year;
e) 5th and succeeding repeated violations –
Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of the
offending product, cancellation of the CPR,
revocation of the License to Operate (LTO)
of the company concerned, including the
blacklisting of the company to be furnished
the Department of Budget and Management
(DBM) and the Department of Trade and
Industry (DTI);
f) An additional penalty of Two Thou-sand
Five Hundred (P2,500.00) Pesos per day
shall be made for every day the violation
continues after having received the order
from the IAC or other such appropriate
body, notifying and penalizing the company
for the infraction.
For purposes of determining whether or not
there is "repeated" violation, each product
violation belonging or owned by a company,
including those of their subsidiaries, are
deemed to be violations of the concerned
milk company and shall not be based on the
specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to
children 0-12 months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code – The Code applies to the marketing, and practices related
thereto, of the following products: breastmilk substitutes, including infant formula; other
milk products, foods and beverages, including bottle-fed complementary foods, when

marketed or otherwise represented to be suitable, with or without modification, for use as
a partial or total replacement of breastmilk; feeding bottles and teats. It also applies to
their quality and availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on
the kind of product being marketed to the public. The law treats infant formula, bottle-
fed complementary food, and breastmilk substitute as separate and distinct product
categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x xx to
satisfy the normal nutritional requirements of infants up to between four to six months of
age, and adapted to their physiological characteristics"; while under Section 4(b), bottle-
fed complementary food refers to "any food, whether manufactured or locally prepared,
suitable as a complement to breastmilk or infant formula, when either becomes insufficient
to satisfy the nutritional requirements of the infant." An infant under Section 4(e) is a
person falling within the age bracket 0-12 months. It is the nourishment of this group of
infants or children aged 0-12 months that is sought to be promoted and protected by the
Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as
"any food being marketed or otherwise presented as a partial or total replacement for
breastmilk, whether or not suitable for that purpose." This section conspicuously lacks
reference to any particular age-group of children. Hence, the provision of the Milk
Code cannot be considered exclusive for children aged 0-12 months. In other
words, breastmilk substitutes may also be intended for young children more than 12
months of age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends
to protect and promote the nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as
provided in Section 3, then it can be subject to regulation pursuant to said law, even if the
product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not
recognize that breastmilk substitutes may be a proper and possible substitute for
breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and
construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and
phrases in the Rule should not be studied as detached and isolated expressions, but the
PoliRev | PIL Assignment No. 1|11
whole and every part thereof must be considered in fixing the meaning of any of its parts
and in order to produce a harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when
necessary, the use of breastmilk substitutes is proper if based on complete and
updated information." Section 8 of the RIRR also states that information and educational
materials should include information on the proper use of infant formula when the use
thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the
use of breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 3 45 and 446 together as they are
interlinked with each other.
To resolve the question of whether the labeling requirements and advertising regulations
under the RIRR are valid, it is important to deal first with the nature, purpose, and depth
of the regulatory powers of the DOH, as defined in general under the 1987 Administrative
Code,47 and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to further discuss it..48 However, health
information, particularly advertising materials on apparently non-toxic products like
breastmilk substitutes and supplements, is a relatively new area for regulation by the
DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands, 50 health
information was already within the ambit of the regulatory powers of the predecessor of
DOH.51 Section 938 thereof charged it with the duty to protect the health of the people,
and vested it with such powers as "(g) the dissemination of hygienic information among
the people and especially the inculcation of knowledge as to the proper care of
infants and the methods of preventing and combating dangerous communicable
diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the
state policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to
protect and promote the right to health of the people and instill health
consciousness among them."52 To that end, it was granted under Section 3 of the
Administrative Code the power to "(6) propagate health information and educate the
population on important health, medical and environmental matters which have health
implications."53

When it comes to information regarding nutrition of infants and young children, however,
the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as
DOH) the power to ensure that there is adequate, consistent and objective information on
breastfeeding and use of breastmilk substitutes, supplements and related products; and
the power to control such information. These are expressly provided for in Sections 12
and 5(a), to wit:
SECTION 12. Implementation and Monitoring –
x xxx
(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the
implementation of this Code and the accomplishment of its purposes and objectives.
x xxx
(4) To exercise such other powers and functions as may be necessary for or incidental to
the attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent information is provided
on infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on
breastmilk vis-à-visbreastmilk substitutes, supplement and related products, in the
following manner:
SECTION 5. x xx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding;
(4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
PoliRev | PIL Assignment No. 1|12
proper use of infant formula, whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes.
Such materials shall not use any picture or text which may idealize the use of
breastmilk substitutes.
SECTION 8. Health Workers –
x xxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual matters, and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage
breastfeeding.
x xxx
(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis
supplied)
The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code 54 to ensure
that the information that would reach pregnant women, mothers of infants, and health
professionals and workers in the health care system is restricted to scientific and factual
matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code
to control information regarding breastmilk vis-a-vis breastmilk substitutes is not
absolute as the power to control does not encompass the power to absolutely prohibit the
advertising, marketing, and promotion of breastmilk substitutes.
 PoliRev | PIL Assignment No. 1|13

The following are the provisions of the Milk Code that unequivocally indicate that the pathogenic microorganisms and must be prepared and used appropriately. Section 16 57of
control over information given to the DOH is not absolute and that absolute prohibition is the RIRR prohibits all health and nutrition claims for products within the scope of the Milk
not contemplated by the Code: Code, such as claims of increased emotional and intellectual abilities of the infant and
young child.
a) Section 2 which requires adequate information and appropriate marketing and
distribution of breastmilk substitutes, to wit: These requirements and limitations are consistent with the provisions of Section 8 of the
Milk Code, to wit:
SECTION 2. Aim of the Code – The aim of the Code is to contribute to the provision of safe
and adequate nutrition for infants by the protection and promotion of breastfeeding and by SECTION 8. Health workers -
ensuring the proper use of breastmilk substitutes and breastmilk supplements when these
are necessary, on the basis of adequate information and through appropriate marketing x xxx
and distribution.
(b) Information provided by manufacturers and distributors to health professionals
b) Section 3 which specifically states that the Code applies to the marketing of and regarding products within the scope of this Code shall be restricted to scientific and
practices related to breastmilk substitutes, including infant formula, and to information factual matters, and such information shall notimply or create a belief that bottlefeeding
concerning their use; is equivalent or superior to breastfeeding. It shall also include the information specified
in Section 5.58 (Emphasis supplied)
c) Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding; and Section 10(d)59 which bars the use on containers and labels of the terms "humanized,"
"maternalized," or similar terms.
d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk These provisions of the Milk Code expressly forbid information that would imply or create a
substitutes and should include information on the health hazards of unnecessary or belief that there is any milk product equivalent to breastmilk or which is humanized or
improper use of said product; maternalized, as such information would be inconsistent with the superiority of
breastfeeding.
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review
and examine advertising, promotion, and other marketing materials; It may be argued that Section 8 of the Milk Code refers only to information given to health
workers regarding breastmilk substitutes, not to containers and labels thereof. However,
f) Section 8(b) which states that milk companies may provide information to health such restrictive application of Section 8(b) will result in the absurd situation in which milk
professionals but such information should be restricted to factual and scientific matters and companies and distributors are forbidden to claim to health workers that their products are
shall not imply or create a belief that bottlefeeding is equivalent or superior to substitutes or equivalents of breastmilk, and yet be allowed to display on the containers
breastfeeding; and and labels of their products the exact opposite message. That askewed interpretation of
the Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all
g) Section 10 which provides that containers or labels should not contain information that information regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the
would discourage breastfeeding and idealize the use of infant formula. same time giving the government control over planning, provision, design, and
dissemination of information on infant feeding.
It is in this context that the Court now examines the assailed provisions of the RIRR
regarding labeling and advertising. Thus, Section 26(c) of the RIRR which requires containers and labels to state that the
product offered is not a substitute for breastmilk, is a reasonable means of enforcing
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling Section 8(b) of the Milk Code and deterring circumvention of the protection and promotion
requirements, specifically: a) that there be a statement that there is no substitute to of breastfeeding as embodied in Section 260 of the Milk Code.
breastmilk; and b) that there be a statement that powdered infant formula may contain
 PoliRev | PIL Assignment No. 1|14

Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements (a) No advertising, promotion or other marketing materials, whether written, audio or
Section 5(b) of the Milk Code which reads: visual, for products within the scope of this Code shall be printed, published, distributed,
exhibited and broadcast unless such materials are duly authorized and approved by an
SECTION 5. x xx inter-agency committee created herein pursuant to the applicable standards provided for in
this Code.
x xxx
the Milk Code invested regulatory authority over advertising, promotional and marketing
(b) Informational and educational materials, whether written, audio, or visual, dealing with materials to an IAC, thus:
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: x xx (5) where needed, the proper use SECTION 12. Implementation and Monitoring -
of infant formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include the social (a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the
and financial implications of its use; the health hazards of inappropriate foods or following members is hereby created:
feeding methods; and, in particular, the health hazards of unnecessary or
improper use of infant formula and other breastmilk substitutes. Such materials
Minister of Health ------------------- Chairman
shall not use any picture or text which may idealize the use of breastmilk substitutes.
(Emphasis supplied)
Minister of Trade and Industry ------------------- Member
The label of a product contains information about said product intended for the buyers
thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the
RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being Minister of Justice ------------------- Member
present in infant formula and other related products when these are prepared and used
inappropriately.
Minister of Social Services and Development ------------------- Member
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that formula milk is
prone to contaminations and there is as yet no technology that allows production of The members may designate their duly authorized representative to every meeting of the
powdered infant formula that eliminates all forms of contamination.62 Committee.

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the The Committee shall have the following powers and functions:
message regarding health hazards including the possibility of contamination with
pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code. (1) To review and examine all advertising. promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk
substitutes and supplements and related products cannot be questioned. It is its (2) To approve or disapprove, delete objectionable portions from and prohibit the printing,
intervention into the area of advertising, promotion, and marketing that is being assailed publication, distribution, exhibition and broadcast of, all advertising promotion or other
by petitioner. marketing materials, whether written, audio or visual, on products within the scope of this
Code;
In furtherance of Section 6(a) of the Milk Code, to wit:
(3) To prescribe the internal and operational procedure for the exercise of its powers and
SECTION 6. The General Public and Mothers. – functions as well as the performance of its duties and responsibilities; and

(4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x xx (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition – No advertising, promotions, sponsorships, or marketing
materials and activities for breastmilk substitutes intended for infants and young children
up to twenty-four (24) months, shall be allowed, because they tend to convey or give
subliminal messages or impressions that undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes and/or replacements, as well as related
products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply
breastmilk substitutes in line with the RIRR’s declaration of principle under Section 4(f), to regulates the advertisement and the promotions of breastfeeding milk substitutes.
wit:
SECTION 4. Declaration of Principles –
x xxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and AO 2006 is trying to prevent is any material that will undermine the practice of
other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory
authority given to the IAC but also imposed absolute prohibition on advertising, promotion,
and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in
Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly
insisted, during the oral arguments on June 19, 2007, that the prohibition under Section
11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
x xxx
x xx Now, the crux of the matter that is being questioned by Petitioner is whether or not
there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute prohibition because Section
PoliRev | PIL Assignment No. 1|15
11 while it states and it is entitled prohibition it states that no advertising, promotion,
sponsorship or marketing materials and activities for breast milk substitutes intended for
infants and young children up to 24 months shall be allowed because this is the standard
they tend to convey or give subliminal messages or impression undermine that breastmilk
or breastfeeding x xx.
We have to read Section 11 together with the other Sections because the other Section,
Section 12, provides for the inter agency committee that is empowered to process and
evaluate all the advertising and promotion materials.
x xxx
x xxx
Now, the prohibition on advertising, Your Honor, must be taken together with the provision
on the Inter-Agency Committee that processes and evaluates because there may be some
information dissemination that are straight forward information dissemination. What the
breastfeeding, Your Honor.
x xxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing of
Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
x xxx
ASSOCIATE JUSTICE SANTIAGO:
x xx Don't you think that the Department of Health overstepped its rule making authority
when it totally banned advertising and promotion under Section 11 prescribed the total

effect rule as well as the content of materials under Section 13 and 15 of the rules and
regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban.
Second, the Inter-Agency Committee is under the Department of Health, Your Honor.
x xxx
ASSOCIATE JUSTICE NAZARIO:
x xxDid I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising
of breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of
breastmilk substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that
can evaluate some advertising and promotional materials, subject to the standards that we
have stated earlier, which are- they should not undermine breastfeeding, Your Honor.
x xxx
x xx Section 11, while it is titled Prohibition, it must be taken in relation with the other
Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the
Inter-Agency Committee has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk
substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
PoliRev | PIL Assignment No. 1|16
We can proudly say that the general rule is that there is a prohibition, however, we take
exceptions and standards have been set. One of which is that, the Inter-Agency Committee
can allow if the advertising and promotions will not undermine breastmilk and
breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for
the approval or rejection of advertising, promotional, or other marketing materials under
Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof which in
turn provides that the rules and regulations must be "pursuant to the applicable standards
provided for in this Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of
the Code, which, at the risk of being repetitious, and for easy reference, are quoted
hereunder:
SECTION 5. Information and Education –
x xxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding;
(4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods of
feeding methods; and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.
x xxx
SECTION 8. Health Workers. –
x xxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and factual
matters and such information shall not imply or create a belief that bottle feeding is

equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5(b).
x xxx
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable
message in Pilipino or English printed on it, or on a label, which message can not readily
become separated from it, and which shall include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to
the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of
inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency
for the enforcement of the provisions of the Code. In relation to such responsibility of the
DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent information is provided
on infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms
the standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC
shall screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the
RIRR which reads as follows:
PoliRev | PIL Assignment No. 1|17
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be
objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the baby or other
such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising,
promotion, and marketing. Through that single provision, the DOH exercises control over
the information content of advertising, promotional and marketing materials on
breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It also
sets a viable standard against which the IAC may screen such materials before they are
made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x xx [T]his Court had, in the past, accepted as sufficient standards the following: "public
interest," "justice and equity," "public convenience and welfare," and "simplicity, economy
and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public
interest and welfare.
4. With regard to activities for dissemination of information to health professionals, the
Court also finds that there is no inconsistency between the provisions of the Milk Code and
the RIRR. Section 7(b)66 of the Milk Code, in relation to Section 8(b)67 of the same Code,
allows dissemination of information to health professionals but such information is
restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of
information to health professionals on scientific and factual matters. What it
prohibits is the involvement of the manufacturer and distributor of the products covered by
the Code in activities for the promotion, education and production of Information,
Education and Communication (IEC) materials regarding breastfeeding that are intended
for women and children. Said provision cannot be construed to encompass even
the dissemination of information to health professionals, as restricted by the Milk
Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers
and distributors to extend assistance in research and in the continuing education of health
professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner

also assails Section 4(i)69 of the RIRR prohibiting milk manufacturers' and distributors'
participation in any policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not
form part of any policymaking body or entity in relation to the advancement of
breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code.
Note that under Section 12(b) of the Milk Code, it is the DOH which shall be principally
responsible for the implementation and enforcement of the provisions of said Code. It is
entirely up to the DOH to decide which entities to call upon or allow to be part of
policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk
companies’ participation in any policymaking body in relation to the advancement of
breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies
from giving reasearch assistance and continuing education to health professionals. Section
2270 of the RIRR does not pertain to research assistance to or the continuing
education of health professionals; rather, it deals with breastfeeding promotion
and education for women and children. Nothing in Section 22 of the RIRR prohibits
milk companies from giving assistance for research or continuing education to health
professionals; hence, petitioner's argument against this particular provision must be struck
down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of
the RIRR provide that research assistance for health workers and researchers may
be allowed upon approval of an ethics committee, and with certain disclosure
requirements imposed on the milk company and on the recipient of the research
award.
The Milk Code endows the DOH with the power to determine how such research or
educational assistance may be given by milk companies or under what conditions health
workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing
limitations on the kind of research done or extent of assistance given by milk companies
are completely in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving
assistance, support, logistics or training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)74of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes may assist in researches,
scholarships and the continuing education, of health professionals in accordance with the
rules and regulations promulgated by the Ministry of Health, now DOH.
PoliRev | PIL Assignment No. 1|18
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the
Milk Code. Section 6(f) of the Milk Code provides that donations may be made by
manufacturers and distributors of breastmilk substitutes upon the request or with the
approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code
leaves it purely to the discretion of the DOH whether to request or accept such donations.
The DOH then appropriately exercised its discretion through Section 51 75 of the RIRR which
sets forth its policy not to request or approve donations from manufacturers and
distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any
donation from milk companies not covered by the Code should be coursed through the IAC
which shall determine whether such donation should be accepted or refused. As reasoned
out by respondents, the DOH is not mandated by the Milk Code to accept donations. For
that matter, no person or entity can be forced to accept a donation. There is, therefore, no
real inconsistency between the RIRR and the law because the Milk Code does not prohibit
the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not
found in the Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced.
The glaring difference in said case and the present case before the Court is that, in
the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly
granted by the law (R.A. No. 776) the power to impose fines and civil penalties, while
the Civil Aeronautics Board (CAB) was granted by the same law the power to review on
appeal the order or decision of the CAA and to determine whether to impose, remit,
mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the
CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the
Court upheld the Department of Energy (DOE) Circular No. 2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the
commission of prohibited acts. The Court found that nothing in the circular contravened the
law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to
impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the
DOH the authority to fix or impose administrative fines. Thus, without any express grant of
power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In
this regard, the DOH again exceeded its authority by providing for such fines or sanctions
in Section 46 of the RIRR. Said provision is, therefore, null and void.
 PoliRev | PIL Assignment No. 1|19

The DOH is not left without any means to enforce its rules and regulations. Section 12(b)
(3) of the Milk Code authorizes the DOH to "cause the prosecution of the violators of this
Code and other pertinent laws on products covered by this Code." Section 13 of the Milk
Code provides for the penalties to be imposed on violators of the provision of the Milk Code
or the rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions –
(a) Any person who violates the provisions of this Code or the rules and regulations
issued pursuant to this Code shall, upon conviction, be punished by a penalty of two (2)
months to one (1) year imprisonment or a fine of not less than One Thousand Pesos
(P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the
offense be committed by a juridical person, the chairman of the Board of Directors, the
president, general manager, or the partners and/or the persons directly responsible
therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health
worker, distributor, manufacturer, or marketing firm or personnel for the practice of their
profession or occupation, or for the pursuit of their business, may, upon recommendation
of the Ministry of Health, be suspended or revoked in the event of repeated violations of
this Code, or of the rules and regulations issued pursuant to this Code. (Emphasis
supplied)
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to
the RIRR is frivolous.
manner by which they are to implement the provisions of a law, 80 in order to make it more
responsive to the times. Hence, it is a standard provision in administrative rules that prior
issuances of administrative agencies that are inconsistent therewith are declared repealed
or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of
the provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x xx [T]he questioned RIRR sought to be implemented by the Respondents
is unnecessary and oppressive, and is offensive to the due process clause of the
Constitution, insofar as the same is in restraint of trade and because a provision
therein is inadequate to provide the public with a comprehensible basis to determine
whether or not they have committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the
provisions that suppress the trade of milk and, thus, violate the due process clause of the
Constitution.
The framers of the constitution were well aware that trade must be subjected to some form
of regulation for the public good. Public interest must be upheld over business
interests.90 In Pest Management Association of the Philippines v. Fertilizer and Pesticide
Authority,91 it was held thus:

Section 57 reads: x xx Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine

Coconut Authority, despite the fact that "our present Constitution enshrines free
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts enterprise as a policy, it nonetheless reserves to the government the power to
thereof inconsistent with these revised rules and implementing regulations are hereby intervene whenever necessary to promote the general welfare." There can be no
repealed or modified accordingly. question that the unregulated use or proliferation of pesticides would be hazardous to our
environment. Thus, in the aforecited case, the Court declared that "free enterprise does
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances not call for removal of ‘protective regulations’." x xx It must be clearly explained
and rules and regulations. Thus, said provision is valid as it is within the DOH's rule- and proven by competent evidence just exactly how such protective regulation
making power. would result in the restraint of trade. [Emphasis and underscoring supplied]

An administrative agency like respondent possesses quasi-legislative or rule-making power
or the power to make rules and regulations which results in delegated legislation that is
within the confines of the granting statute and the Constitution, and subject to the doctrine
of non-delegability and separability of powers.78 Such express grant of rule-making power
necessarily includes the power to amend, revise, alter, or repeal the same.79 This is to
allow administrative agencies flexibility in formulating and adjusting the details and
In this case, petitioner failed to show that the proscription of milk manufacturers’
participation in any policymaking body (Section 4(i)), classes and seminars for women and
children (Section 22); the giving of assistance, support and logistics or training (Section
32); and the giving of donations (Section 52) would unreasonably hamper the trade of
breastmilk substitutes. Petitioner has not established that the proscribed activities are
indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that
 PoliRev | PIL Assignment No. 1|20

the aforementioned provisions of the RIRR are unreasonable and oppressive for being in
restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable
and oppressive. Said section provides for the definition of the term "milk company," to wit:
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance
with the objective, purpose and intent of the Milk Code, constituting reasonable regulation
of an industry which affects public health and welfare and, as such, the rest of the RIRR do
not constitute illegal restraint of trade nor are they violative of the due process clause of
the Constitution.

SECTION 5 x xx. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of
infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for
replacement, or by any other description of such nature, including their representatives being ultra vires. The Department of Health and respondents are PROHIBITED from
who promote or otherwise advance their commercial interests in marketing those products; implementing said provisions.

On the other hand, Section 4 of the Milk Code provides: The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest
of the provisions of Administrative Order No. 2006-0012 is concerned.
(d) "Distributor" means a person, corporation or any other entity in the public or private
sector engaged in the business (whether directly or indirectly) of marketing at the SO ORDERED.
wholesale or retail level a product within the scope of this Code. A "primary distributor" is a
manufacturer's sales agent, representative, national distributor or broker.

x xxx

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

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

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

The Court is not convinced that the definition of "milk company" provided in the RIRR
would bring about any change in the treatment or regulation of "distributors" and
"manufacturers" of breastmilk substitutes, as defined under the Milk Code.

2. G.R. No. 159618 February 1, 2011
BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN,
and Rep. LIZA L. MAZA,Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in
his capacity as Secretary of Foreign Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to
nullify the Non-Surrender Agreement concluded by and between the Republic of the
Philippines (RP) and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary
of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was
impleaded in his capacity as then Executive Secretary.2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute 3 establishing the
International Criminal Court (ICC) with "the power to exercise its jurisdiction over persons
for the most serious crimes of international concern x xx and shall be complementary to
the national criminal jurisdictions."4 The serious crimes adverted to cover those considered
grave under international law, such as genocide, crimes against humanity, war crimes, and
crimes of aggression.5
On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the
Rome Statute which, by its terms, is "subject to ratification, acceptance or approval" by
the signatory states.6 As of the filing of the instant petition, only 92 out of the 139
signatory countries appear to have completed the ratification, approval and concurrence
process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
PoliRev | PIL Assignment No. 1|21
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470
to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender
bilateral agreement (Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted
the US proposals embodied under the US Embassy Note adverted to and put in effect
the Agreement with the US government. In esse, the Agreement aims to protect what it
refers to and defines as "persons" of the RP and US from frivolous and harassment suits
that might be brought against them in international tribunals. 8 It is reflective of the
increasing pace of the strategic security and defense partnership between the two
countries. As of May 2, 2003, similar bilateral agreements have been effected by and
between the US and 33 other countries.9
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, "persons" are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines
to a third country, the [US] will not agree to the surrender or transfer of that person by the
third country to any international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to
a third country, the [GRP] will not agree to the surrender or transfer of that person by the
third country to any international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this
 PoliRev | PIL Assignment No. 1|22

Agreement shall continue to apply with respect to any act occurring, or any allegation International Criminal Court, and if so whether the x xx Agreement is void and
arising, before the effective date of termination. unenforceable on this ground.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the
non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28,
2003 that the exchange of diplomatic notes constituted a legally binding agreement under
international law; and that, under US law, the said agreement did not require the advice
and consent of the US Senate.10
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.
For their part, respondents question petitioner’s standing to maintain a suit and counter
that the Agreement, being in the nature of an executive agreement, does not require
Senate concurrence for its efficacy. And for reasons detailed in their comment, respondents
assert the constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x xx GRAVELY ABUSED
THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR
CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-
03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED
THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE
PHILIPPINE SENATE.
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave
abuse of discretion amounting to lack or excess of jurisdiction in connection with its
execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR
CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE
WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.
III. WHETHER THE x xx AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE
CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x
x x.11
The foregoing issues may be summarized into two: first, whether or not
the Agreement was contracted validly, which resolves itself into the question of whether or
not respondents gravely abused their discretion in concluding it; and second, whether or
not the Agreement, which has not been submitted to the Senate for concurrence,
contravenes and undermines the Rome Statute and other treaties. But because
respondents expectedly raised it, we shall first tackle the issue of petitioner’s legal
standing.
The Court’s Ruling
This petition is bereft of merit.

A. Whether by entering into the x xx Agreement Respondents gravely abused their Procedural Issue: Locus Standi of Petitioner
discretion when they capriciously abandoned, waived and relinquished our only legitimate
recourse through the Rome Statute of the [ICC] to prosecute and try "persons" as defined Petitioner, through its three party-list representatives, contends that the issue of the
in the x xx Agreement, x xx or literally any conduit of American interests, who have validity or invalidity of the Agreement carries with it constitutional significance and is of
committed crimes of genocide, crimes against humanity, war crimes and the crime of paramount importance that justifies its standing. Cited in this regard is what is usually
aggression, thereby abdicating Philippine Sovereignty. referred to as the emergency powers cases,12 in which ordinary citizens and taxpayers
were accorded the personality to question the constitutionality of executive issuances.
B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the
[RP] President and the [DFA] Secretary x xx are obliged by the principle of good faith to Locus standi is "a right of appearance in a court of justice on a given
question."13 Specifically, it is "a party’s personal and substantial interest in a case where he
refrain from doing all acts which would substantially impair the value of the undertaking as
signed. has sustained or will sustain direct injury as a result" 14 of the act being challenged, and
"calls for more than just a generalized grievance."15 The term "interest" refers to material
C. Whether the x xx Agreement constitutes an act which defeats the object and purpose interest, as distinguished from one that is merely incidental. 16 The rationale for requiring a
of the Rome Statute of the International Criminal Court and contravenes the obligation of party who challenges the validity of a law or international agreement to allege such a
good faith inherent in the signature of the President affixed on the Rome Statute of the personal stake in the outcome of the controversy is "to assure the concrete adverseness
 PoliRev | PIL Assignment No. 1|23

which sharpens the presentation of issues upon which the court so largely depends for transcendental importance, we wrote again in Bayan v. Zamora,24 "The Court may relax
illumination of difficult constitutional questions."17 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."
Locus standi, however, is merely a matter of procedure and it has been recognized that, in
some cases, suits are not brought by parties who have been personally injured by the Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk,
operation of a law or any other government act, but by concerned citizens, taxpayers, or digress from or abandon its sacred duty and authority to uphold the Constitution in matters
voters who actually sue in the public interest.18 Consequently, in a catena of cases,19 this that involve grave abuse of discretion brought before it in appropriate cases, committed by
Court has invariably adopted a liberal stance on locus standi. any officer, agency, instrumentality or department of the government,"25 we cannot but
resolve head on the issues raised before us. Indeed, where an action of any branch of
Going by the petition, petitioner’s representatives pursue the instant suit primarily as government is seriously alleged to have infringed the Constitution or is done with grave
concerned citizens raising issues of transcendental importance, both for the Republic and abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to
the citizenry as a whole. settle it. As in this petition, issues are precisely raised putting to the fore the propriety of
the Agreement pending the ratification of the Rome Statute.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with Validity of the RP-US Non-Surrender Agreement
standing. Francisco, Jr. v. NagmamalasakitnamgaManananggolngmgaManggagawang
Pilipino, Inc.20 expounded on this requirement, thus: Petitioner’s initial challenge against the Agreement relates to form, its threshold posture
being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.
In a long line of cases, however, concerned citizens, taxpayers and legislators when
specific requirements have been met have been given standing by this Court. Petitioners’ contention––perhaps taken unaware of certain well-recognized international
doctrines, practices, and jargons––is untenable. One of these is the doctrine of
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a incorporation, as expressed in Section 2, Article II of the Constitution, wherein the
statute must be direct and personal. He must be able to show, not only that the law or any Philippines adopts the generally accepted principles of international law and international
government act is invalid, but also that he sustained or is in imminent danger of sustaining jurisprudence as part of the law of the land and adheres to the policy of peace,
some direct injury as a result of its enforcement, and not merely that he suffers thereby in cooperation, and amity with all nations.26 An exchange of notes falls "into the category of
some indefinite way. It must appear that the person complaining has been or is about to inter-governmental agreements,"27 which is an internationally accepted form of
be denied some right or privilege to which he is lawfully entitled or that he is about to be international agreement. The United Nations Treaty Collections (Treaty Reference Guide)
subjected to some burdens or penalties by reason of the statute or act complained of. In defines the term as follows:
fine, when the proceeding involves the assertion of a public right, the mere fact that he is a
citizen satisfies the requirement of personal interest.21 An "exchange of notes" is a record of a routine agreement, that has many similarities with
the private law contract. The agreement consists of the exchange of two documents, each
In the case at bar, petitioner’s representatives have complied with the qualifying conditions of the parties being in the possession of the one signed by the representative of the other.
or specific requirements exacted under the locus standi rule. As citizens, their interest in Under the usual procedure, the accepting State repeats the text of the offering State to
the subject matter of the petition is direct and personal. At the very least, their assertions record its assent. The signatories of the letters may be government Ministers, diplomats or
questioning the Agreement are made of a public right, i.e., to ascertain that departmental heads. The technique of exchange of notes is frequently resorted to, either
the Agreement did not go against established national policies, practices, and obligations because of its speedy procedure, or, sometimes, to avoid the process of legislative
bearing on the State’s obligation to the community of nations. approval.28

At any event, the primordial importance to Filipino citizens in general of the issue at hand In another perspective, the terms "exchange of notes" and "executive agreements" have
impels the Court to brush aside the procedural barrier posed by the traditional requirement been used interchangeably, exchange of notes being considered a form of executive
of locus standi, as we have done in a long line of earlier cases, notably in the old but oft- agreement that becomes binding through executive action.29 On the other hand, executive
cited emergency powers cases22 and Kilosbayan v. Guingona, Jr.23 In cases of

agreements concluded by the President "sometimes take the form of exchange of notes
and at other times that of more formal documents denominated ‘agreements’ or
‘protocols.’"30As former US High Commissioner to the Philippines Francis B. Sayre observed
in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends and
agreements – whether denominated executive agreements or exchange of notes or
otherwise – begin, may sometimes be difficult of ready ascertainment.31 x xx
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the
Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be bound––is a recognized mode of concluding a legally binding international
written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an
international agreement 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."32 International agreements may be in
the form of (1) treaties that require legislative concurrence after executive ratification; or
(2) executive agreements that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a narrower range of
subject matters than treaties.33
Under international law, there is no difference between treaties and executive agreements
in terms of their binding effects on the contracting states concerned, 34 as long as the
negotiating functionaries have remained within their powers.35 Neither, on the domestic
sphere, can one be held valid if it violates the Constitution. 36 Authorities are, however,
agreed that one is distinct from another for accepted reasons apart from the concurrence-
requirement aspect.37 As has been observed by US constitutional scholars, a treaty has
greater "dignity" than an executive agreement, because its constitutional efficacy is
beyond doubt, a treaty having behind it the authority of the President, the Senate, and the
people;38 a ratified treaty, unlike an executive agreement, takes precedence over any prior
statutory enactment.39
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does
of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner
takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court
reproduced the following observations made by US legal scholars: "[I]nternational
agreements involving political issues or changes of national policy and those involving
PoliRev | PIL Assignment No. 1|24
international arrangements of a permanent character usually take the form of treaties
[while] those embodying adjustments of detail carrying out well established national
policies and traditions and those involving arrangements of a more or less temporary
nature take the form of executive agreements." 40
Pressing its point, petitioner submits that the subject of the Agreement does not fall under
any of the subject-categories that are enumerated in the Eastern Sea Trading case, and
that may be covered by an executive agreement, such as commercial/consular relations,
most-favored nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of
Zambales and Merchant,41 holding that an executive agreement through an exchange of
notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the form of
agreement is the parties’ intent and desire to craft an international agreement in the form
they so wish to further their respective interests. Verily, the matter of form takes a back
seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor under
the pactasunt servanda42 principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more
complex and the domain of international law wider, as to include such subjects as human
rights, the environment, and the sea. In fact, in the US alone, the executive agreements
executed by its President from 1980 to 2000 covered subjects such as defense, trade,
scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps,
arms limitation, and nuclear safety, among others.43 Surely, the enumeration in Eastern
Sea Trading cannot circumscribe the option of each state on the matter of which the
international agreement format would be convenient to serve its best interest. As Francis
Sayre said in his work referred to earlier:
x xx It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements,
other than those entered into under the trade-agreement act, have been negotiated with
 PoliRev | PIL Assignment No. 1|25

foreign governments. x xx They cover such subjects as the inspection of vessels, constituted solely for the purpose of providing individuals or groups of individuals with
navigation dues, income tax on shipping profits, the admission of civil air craft, custom immunity from the jurisdiction of the ICC; and such grant of immunity through non-
matters and commercial relations generally, international claims, postal matters, the surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of the
registration of trademarks and copyrights, etc. x xx Rome Statute. It concludes that state parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, thereby constituting a
And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a breach of Arts. 27,50 86,51 8952 and 9053 thereof.
treaty-implementing executive agreement,45 which necessarily would cover the same
matters subject of the underlying treaty. Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure
that those responsible for the worst possible crimes are brought to justice in all cases,
But over and above the foregoing considerations is the fact that––save for the situation primarily by states, but as a last resort, by the ICC; thus, any agreement—like the non-
and matters contemplated in Sec. 25, Art. XVIII of the Constitution 46––when a treaty is surrender agreement—that precludes the ICC from exercising its complementary function
required, the Constitution does not classify any subject, like that involving political issues, of acting when a state is unable to or unwilling to do so, defeats the object and purpose of
to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is the Rome Statute.
that treaties need the concurrence of the Senate by a vote defined therein to complete the
ratification process. Petitioner would add that the President and the DFA Secretary, as representatives of a
signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to different performing acts that substantially devalue the purpose and object of the Statute, as
factual milieus. There, the Court held that an executive agreement cannot be used to signed. Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact
amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive that it has an immoral purpose or is otherwise at variance with a priorly executed treaty.
agreement that does not require the concurrence of the Senate for its ratification may not
be used to amend a treaty that, under the Constitution, is the product of the ratifying acts Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor
of the Executive and the Senate. The presence of a treaty, purportedly being subject to does it differ from, the Rome Statute. Far from going against each other, one complements
amendment by an executive agreement, does not obtain under the premises. the other. As a matter of fact, the principle of complementarity underpins the creation of
the ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction
Considering the above discussion, the Court need not belabor at length the third main of the ICC is to "be complementary to national criminal jurisdictions [of the signatory
issue raised, referring to the validity and effectivity of the Agreement without the states]."54 Art. 1 of the Rome Statute pertinently provides:
concurrence by at least two-thirds of all the members of the Senate. The Court has,
in Eastern Sea Trading,48 as reiterated in Bayan,49 given recognition to the obligatory effect Article 1
of executive agreements without the concurrence of the Senate: The Court

x xx [T]he right of the Executive to enter into binding agreements without the necessity of An International Crimininal Court ("the Court") is hereby established. It x xx shall have
subsequent Congressional approval has been confirmed by long usage. From the earliest the power to exercise its jurisdiction over persons for the most serious crimes of
days of our history, we have entered executive agreements covering such subjects as international concern, as referred to in this Statute, and shall be complementary to
commercial and consular relations, most favored-nation rights, patent rights, trademark national criminal jurisdictions. The jurisdiction and functioning of the Court shall be
and copyright protection, postal and navigation arrangements and the settlement of governed by the provisions of this Statute. (Emphasis ours.)
claims. The validity of these has never been seriously questioned by our courts.
Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the
The Agreement Not in Contravention of the Rome Statute duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes." This provision indicates that primary jurisdiction over the so-called
It is the petitioner’s next contention that the Agreement undermines the establishment of international crimes rests, at the first instance, with the state where the crime was
the ICC and is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes
upon the effectivity of the Rome Statute. Petitioner posits that the Agreement was
 PoliRev | PIL Assignment No. 1|26

committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17, Moreover, under international law, there is a considerable difference between a State-Party
par. 155 of the Rome Statute. and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a
signatory state is only obliged to refrain from acts which would defeat the object and
Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. purpose of a treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow
20, Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a- all the provisions of a treaty in good faith.
vis that of the ICC. As far as relevant, the provision states that "no person who has been
tried by another court for conduct x xx [constituting crimes within its jurisdiction] shall be In the instant case, it bears stressing that the Philippines is only a signatory to the Rome
tried by the [International Criminal] Court with respect to the same conduct x xx." Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged
to refrain from acts which would defeat the object and purpose of the Rome Statute. Any
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of argument obliging the Philippines to follow any provision in the treaty would be premature.
jurisdictional conflict between the Philippines, as party to the non-surrender agreement,
and the ICC; or the idea of the Agreement substantially impairing the value of the RP’s As a result, petitioner’s argument that State-Parties with non-surrender agreements are
undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86,
Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute 89 and 90, must fail. These articles are only legally binding upon State-Parties, not
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes signatories.
committed within their respective borders, the complementary jurisdiction of the ICC
coming into play only when the signatory states are unwilling or unable to prosecute. Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the
Given the above consideration, petitioner’s suggestion––that the RP, by entering into requesting State is a State not Party to this Statute the requested State, if it is not under
the Agreement, violated its duty required by the imperatives of good faith and breached its an international obligation to extradite the person to the requesting State, shall give
commitment under the Vienna Convention57 to refrain from performing any act tending to priority to the request for surrender from the Court. x xx" In applying the provision, certain
impair the value of a treaty, e.g., the Rome Statute––has to be rejected outright. For undisputed facts should be pointed out: first, the US is neither a State-Party nor a
nothing in the provisions of the Agreement, in relation to the Rome Statute, tends to signatory to the Rome Statute; and second, there is an international agreement between
diminish the efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be the US and the Philippines regarding extradition or surrender of persons, i.e., the
overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute
surrender of an erring person, should the process require the requested state to perform still recognizes the primacy of international agreements entered into between States, even
an act that would violate some international agreement it has entered into. We refer to Art. when one of the States is not a State-Party to the Rome Statute.
98(2) of the Rome Statute, which reads:
Sovereignty Limited by International Agreements
Article 98
Cooperation with respect to waiver of immunity Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty
and consent to surrender by bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international
x xxx concerns in the Philippines. Formulating petitioner’s argument a bit differently, the RP, by
entering into the Agreement, does thereby abdicate its sovereignty, abdication being done
2. The Court may not proceed with a request for surrender which would require the by its waiving or abandoning its right to seek recourse through the Rome Statute of the
requested State to act inconsistently with its obligations under international agreements ICC for erring Americans committing international crimes in the country.
pursuant to which the consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation of the sending State We are not persuaded. As it were, the Agreement is but a form of affirmance and
for the giving of consent for the surrender. confirmance of the Philippines’ national criminal jurisdiction. National criminal jurisdiction
being primary, as explained above, it is always the responsibility and within the

prerogative of the RP either to prosecute criminal offenses equally covered by the Rome
Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try
"persons" of the US, as the term is understood in the Agreement, under our national
criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erring
citizens or over US "persons" committing high crimes in the country and defer to the
secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the
Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to
exercise either its national criminal jurisdiction over the "person" concerned or to give its
consent to the referral of the matter to the ICC for trial. In the same breath, the US must
extend the same privilege to the Philippines with respect to "persons" of the RP committing
high crimes within US territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines
agreeing to undertake the things set forth in the Agreement. Surely, one State can agree
to waive jurisdiction—to the extent agreed upon—to subjects of another State due to the
recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
Romulo59—a case involving the implementation of the criminal jurisdiction provisions of the
RP-US Visiting Forces Agreement—is apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another State’s territory. x xx
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty.
Almost every time a state enters into an international agreement, it voluntarily sheds off
part of its sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines
isolated from the rest of the world. It even adheres, as earlier stated, to the policy of
cooperation and amity with all nations.60
By their nature, treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary act,
nations may decide to surrender or waive some aspects of their state power or agree to
limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual
underlying consideration in this partial surrender may be the greater benefits derived from
a pact or a reciprocal undertaking of one contracting party to grant the same privileges or
immunities to the other. On the rationale that the Philippines has adopted the generally
accepted principles of international law as part of the law of the land, a portion of
sovereignty may be waived without violating the Constitution. 61 Such waiver does not
PoliRev | PIL Assignment No. 1|27
amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine
courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of
international law. The immoral aspect proceeds from the fact that the Agreement, as
petitioner would put it, "leaves criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of humanity; x xx it precludes our country from
delivering an American criminal to the [ICC] x x x."63
The above argument is a kind of recycling of petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.64
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, "is an assertion by the Philippines
of its desire to try and punish crimes under its national law. x xxThe agreement is a
recognition of the primacy and competence of the country’s judiciary to try offenses under
its national criminal laws and dispense justice fairly and judiciously."
Petitioner, we believe, labors under the erroneous impression that the Agreement would
allow Filipinos and Americans committing high crimes of international concern to escape
criminal trial and punishment. This is manifestly incorrect. Persons who may have
committed acts penalized under the Rome Statute can be prosecuted and punished in the
Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming,
for the nonce, that all the formalities necessary to bind both countries to the Rome Statute
have been met. For perspective, what the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, like the ICC, without the
consent of the other party, which may desire to prosecute the crime under its existing
laws. With the view we take of things, there is nothing immoral or violative of international
law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the
non-surrender agreement over an offense considered criminal by both Philippine laws and
the Rome Statute.
No Grave Abuse of Discretion
Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the
Agreement. And without specifically saying so, petitioner would argue that the non-
 PoliRev | PIL Assignment No. 1|28

surrender agreement was executed by the President, thru the DFA Secretary, in grave
abuse of discretion.
The Court need not delve on and belabor the first portion of the above posture of
petitioner, the same having been discussed at length earlier on. As to the second portion,
We wish to state that petitioner virtually faults the President for performing, through
respondents, a task conferred the President by the Constitution—the power to enter into
international agreements.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the
second paragraph thereof, provides:
Section 17. Jurisdiction. – x xxx

By constitutional fiat and by the nature of his or her office, the President, as head of state In the interest of justice, the relevant Philippine authorities may dispense with the
and government, is the sole organ and authority in the external affairs of the investigation or prosecution of a crime punishable under this Act if another court or
country.65 The Constitution vests in the President the power to enter into international international tribunal is already conducting the investigation or undertaking the prosecution
agreements, subject, in appropriate cases, to the required concurrence votes of the of such crime. Instead, the authorities may surrender or extradite suspected or accused
Senate. But as earlier indicated, executive agreements may be validly entered into without persons in the Philippines to the appropriate international court, if any, or to another State
such concurrence. As the President wields vast powers and influence, her conduct in the pursuant to the applicable extradition laws and treaties. (Emphasis supplied.)
external affairs of the nation is, as Bayan would put it, "executive altogether." The right of
the President to enter into or ratify binding executive agreements has been confirmed by A view is advanced that the Agreement amends existing municipal laws on the State’s
long practice.66 obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes
against humanity and war crimes. Relying on the above-quoted statutory proviso, the view
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria posits that the Philippine is required to surrender to the proper international tribunal those
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope persons accused of the grave crimes defined under RA 9851, if it does not exercise its
of the authority and discretion vested in her by the Constitution. At the end of the day, the primary jurisdiction to prosecute them.
President––by ratifying, thru her deputies, the non-surrender agreement––did nothing
more than discharge a constitutional duty and exercise a prerogative that pertains to her The basic premise rests on the interpretation that if it does not decide to prosecute a
office. foreign national for violations of RA 9851, the Philippines has only two options, to wit: (1)
surrender the accused to the proper international tribunal; or (2) surrender the accused to
While the issue of ratification of the Rome Statute is not determinative of the other issues another State if such surrender is "pursuant to the applicable extradition laws and
raised herein, it may perhaps be pertinent to remind all and sundry that about the time treaties." But the Philippines may exercise these options only in cases where "another
this petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. court or international tribunal is already conducting the investigation or undertaking the
Office of the Executive Secretary.67 As the Court emphasized in said case, the power to prosecution of such crime;" otherwise, the Philippines must prosecute the crime before its
ratify a treaty, the Statute in that instance, rests with the President, subject to the own courts pursuant to RA 9851.
concurrence of the Senate, whose role relative to the ratification of a treaty is limited
merely to concurring in or withholding the ratification. And concomitant with this treaty- Posing the situation of a US national under prosecution by an international tribunal for any
making power of the President is his or her prerogative to refuse to submit a treaty to the crime under RA 9851, the Philippines has the option to surrender such US national to the
Senate; or having secured the latter’s consent to the ratification of the treaty, refuse to international tribunal if it decides not to prosecute such US national here. The view asserts
ratify it.68 This prerogative, the Court hastened to add, is the President’s alone and cannot that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of
be encroached upon via a writ of mandamus. Barring intervening events, then, the the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US
Philippines remains to be just a signatory to the Rome Statute.Under Art. 125 69 thereof, before the Philippines can exercise such option, requires an amendatory law. In line with
the final acts required to complete the treaty process and, thus, bring it into force, insofar this scenario, the view strongly argues that the Agreement prevents the Philippines—
as the Philippines is concerned, have yet to be done. without the consent of the US—from surrendering to any international tribunal US nationals
accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851.
 PoliRev | PIL Assignment No. 1|29

Consequently, the view is strongly impressed that the Agreement cannot be embodied in a jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the tenor of
simple executive agreement in the form of an exchange of notes but must be implemented the Agreement.
through an extradition law or a treaty with the corresponding formalities.
The view makes much of the above quoted second par. of Sec. 17, RA 9851
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, as requiring the Philippine State to surrender to the proper international tribunal those
where the Philippines adopts, as a national policy, the "generally accepted principles of persons accused of crimes sanctioned under said law if it does not exercise its primary
international law as part of the law of the land," the Court is further impressed to perceive jurisdiction to prosecute such persons. This view is not entirely correct, for the above
the Rome Statute as declaratory of customary international law. In other words, the quoted proviso clearly provides discretion to the Philippine State on whether to surrender
Statute embodies principles of law which constitute customary international law or custom or not a person accused of the crimes under RA 9851. The statutory proviso uses the word
and for which reason it assumes the status of an enforceable domestic law in the context "may." It is settled doctrine in statutory construction that the word "may" denotes
of the aforecited constitutional provision. As a corollary, it is argued that any derogation discretion, and cannot be construed as having mandatory effect.73 Thus, the pertinent
from the Rome Statute principles cannot be undertaken via a mere executive agreement, second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine
which, as an exclusive act of the executive branch, can only implement, but cannot amend State.1avvphi1
or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate the
objects of the principles of law or alters customary rules embodied in the Rome Statute. Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where "another court or
Prescinding from the foregoing premises, the view thus advanced considers international tribunal is already conducting the investigation or undertaking the prosecution
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851.
concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the Said legal proviso aptly provides that the surrender may be made "to another State
nature of a municipal law that can amend or supersede another law, in this instance Sec. pursuant to the applicable extradition laws and treaties." The Agreement can already be
17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic considered a treaty following this Court’s decision in Nicolas v. Romulo74 which cited
law under Sec. 2, Art. II of the Constitution. Weinberger v. Rossi.75 In Nicolas, We held that "an executive agreement is a ‘treaty’ within
the meaning of that word in international law and constitutes enforceable domestic law vis-
We are unable to lend cogency to the view thus taken. For one, we find that à-vis the United States."76
the Agreement does not amend or is repugnant to RA 9851. For another, the view does not
clearly state what precise principles of law, if any, the Agreement alters. And for a third, it Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine
of the principles of law subsumed in the Rome Statute. law, on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus,
the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as run counter to Sec. 17 of RA 9851.
the former merely reinforces the primacy of the national jurisdiction of the US and the
Philippines in prosecuting criminal offenses committed by their respective citizens and The view’s reliance on Suplico v. Neda77 is similarly improper. In that case, several
military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute petitions were filed questioning the power of the President to enter into foreign loan
over high crimes indicated thereat is clearly and unmistakably complementary to the agreements. However, before the petitions could be resolved by the Court, the Office of
national criminal jurisdiction of the signatory states. the Solicitor General filed a Manifestation and Motion averring that the Philippine
Government decided not to continue with the ZTE National Broadband Network Project,
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international thus rendering the petition moot. In resolving the case, the Court took judicial notice of the
humanitarian law, genocide and other crimes against humanity; 70 (2) provides penal act of the executive department of the Philippines (the President) and found the petition to
sanctions and criminal liability for their commission;71 and (3) establishes special courts for be indeed moot. Accordingly, it dismissed the petitions.
the prosecution of these crimes and for the State to exercise primary criminal

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications
of an executive agreement. He stated that "an executive agreement has the force and
effect of law x xx [it] cannot amend or repeal prior laws." 78 Hence, this argument finds no
application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably,
this argument cannot be found in the ratio decidendi of the case, but only in the dissenting
opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for
the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be
an extraditable offense if it is punishable under the laws in both Contracting Parties x x
x,"79 and thereby concluding that while the Philippines has criminalized under RA 9851 the
acts defined in the Rome Statute as war crimes, genocide and other crimes against
humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v.
Coolidge, in the US, a person cannot be tried in the federal courts for an international
crime unless Congress adopts a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes (1) kills members of that group;
mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing
war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code (2) causes serious bodily injury to members of that group;
Annotated (USCA) provides for the criminal offense of "war crimes" which is similar to the
war crimes found in both the Rome Statute and RA 9851, thus: (3) causes the permanent impairment of the mental faculties of members of the group
through drugs, torture, or similar techniques;
(a) Offense – Whoever, whether inside or outside the United States, commits a war crime,
in any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall
also be subject to the penalty of death.
(b) Circumstances – The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed
Forces of the United States or a national of the United States (as defined in Section 101 of
the Immigration and Nationality Act).
(c) Definition – As used in this Section the term "war crime" means any conduct –
(1) Defined as a grave breach in any of the international conventions signed at Geneva 12
August 1949, or any protocol to such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;
PoliRev | PIL Assignment No. 1|30
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d])
when committed in the context of and in association with an armed conflict not of an
international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996),
when the United States is a party to such Protocol, willfully kills or causes serious injury to
civilians.801avvphi1
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
§1091. Genocide
(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with
specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or
religious group as such–
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).81
Arguing further, another view has been advanced that the current US laws do not cover
every crime listed within the jurisdiction of the ICC and that there is a gap between the
definitions of the different crimes under the US laws versus the Rome Statute. The view
used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US
Military and the International Criminal Court," as its basis.
At the outset, it should be pointed out that the report used may not have any weight or
value under international law. Article 38 of the Statute of the International Court of Justice
 PoliRev | PIL Assignment No. 1|31

(ICJ) lists the sources of international law, as follows: (1) international conventions, group; whole or in part;
whether general or particular, establishing rules expressly recognized by the contesting
states; (2) international custom, as evidence of a general practice accepted as law; (3) the (e) Forcibly transferring children (5) imposes measures intended to
general principles of law recognized by civilized nations; and (4) subject to the provisions of the group to another group. prevent births within the group; or
of Article 59, judicial decisions and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination of rules of law. The report (6) transfers by force children of the
does not fall under any of the foregoing enumerated sources. It cannot even be considered group to another group;
as the "teachings of highly qualified publicists." A highly qualified publicist is a scholar of
public international law and the term usually refers to legal scholars or "academic shall be punished as provided in
writers."82 It has not been shown that the authors83 of this report are highly qualified subsection (b).
publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions Article 8 (d) Definition – As used in this
of the crimes are nonexistent. To highlight, the table below shows the definitions of War Crimes Section the term "war crime" means
genocide and war crimes under the Rome Statute vis-à-vis the definitions under US laws: any conduct –
2. For the purpose of this Statute,
"war crimes" means: (1) Defined as a grave breach in any
Rome Statute US Law
of the international conventions
Article 6 §1091. Genocide (a) Grave breaches of the Geneva signed at Geneva 12 August 1949, or
Genocide Conventions of 12 August 1949, any protocol to such convention to
(a) Basic Offense – Whoever, namely, any of the following acts which the United States is a party;
For the purpose of this Statute, whether in the time of peace or in against persons or property
"genocide" means any of the time of war and with specific intent protected under the provisions of (2) Prohibited by Article 23, 25, 27
following acts committed with to destroy, in whole or in substantial the relevant Geneva Convention: or 28 of the Annex to the Hague
intent to destroy, in whole or in part, a national, ethnic, racial or x x x84 Convention IV, Respecting the Laws
part, a national, ethnical, racial or religious group as such– and Customs of War on Land, signed
religious group, as such: (b) Other serious violations of the 18 October 1907;
(1) kills members of that group; laws and customs applicable in
(a) Killing members of the group; international armed conflict, (3) Which constitutes a grave breach
(2) causes serious bodily injury to within the established framework of common Article 3 (as defined in
(b) Causing serious bodily or members of that group; of international law, namely, any subsection [d]85) when committed in
mental harm to members of the of the following acts: the context of and in association with
group; (3) causes the permanent an armed conflict not of an
impairment of the mental faculties of x xxx international character; or
(c) Deliberately inflicting on the members of the group through
group conditions of life calculated drugs, torture, or similar techniques; (c) In the case of an armed (4) Of a person who, in relation to an
to bring about its physical conflict not of an international armed conflict and contrary to the
destruction in whole or in part; (4) subjects the group to conditions character, serious violations of provisions of the Protocol on
of life that are intended to cause the article 3 common to the four Prohibitions or Restrictions on the
(d) Imposing measures intended physical destruction of the group in Geneva Conventions of 12 August Use of Mines, Booby-Traps and Other
to prevent births within the 1949, namely, any of the Devices as amended at Geneva on 3
 PoliRev | PIL Assignment No. 1|32

following acts committed against May 1996 (Protocol II as amended The report went on further to say that "[a]ccording to those involved, the elements of
persons taking no active part in on 3 May 1996), when the United crimes laid out in the Rome Statute have been part of US military doctrine for
the hostilities, including members States is a party to such Protocol, decades."88 Thus, the argument proffered cannot stand.
of armed forces who have laid willfully kills or causes serious injury
Nonetheless, despite the lack of actual domestic legislation, the US notably follows the
down their arms and those placed to civilians.86
doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete
hors de combat by sickness,
Habana89 case already held international law as part of the law of the US, to wit:
wounds, detention or any other
cause:
International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending upon it
x xxx
are duly presented for their determination. For this purpose, where there is no treaty and
(d) Paragraph 2 (c) applies to no controlling executive or legislative act or judicial decision, resort must be had to the
armed conflicts not of an customs and usages of civilized nations, and, as evidence of these, to the works of jurists
international character and thus and commentators who by years of labor, research, and experience have made themselves
does not apply to situations of peculiarly well acquainted with the subjects of which they treat. Such works are resorted to
internal disturbances and by judicial tribunals, not for the speculations of their authors concerning what the law
tensions, such as riots, isolated ought to be, but for the trustworthy evidence of what the law really is.90 (Emphasis
and sporadic acts of violence or supplied.)
other acts of a similar nature.
Thus, a person can be tried in the US for an international crime despite the lack of
(e) Other serious violations of the domestic legislation. The cited ruling in U.S. v. Coolidge, 91 which in turn is based on the
laws and customs applicable in holding in U.S. v. Hudson,92 only applies to common law and not to the law of nations or
armed conflicts not of an international law.93 Indeed, the Court in U.S. v. Hudson only considered the question,
international character, within the "whether the Circuit Courts of the United States can exercise a common law jurisdiction in
established framework of criminal cases."94 Stated otherwise, there is no common law crime in the US but this is
international law, namely, any of considerably different from international law.
the following acts: x xx.
The US doubtless recognizes international law as part of the law of the land, necessarily
including international crimes, even without any local statute.95 In fact, years later, US
Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, courts would apply international law as a source of criminal liability despite the lack of a
the report itself stated as much, to wit: local statute criminalizing it as such. So it was that in Ex Parte Quirin96 the US Supreme
Court noted that "[f]rom the very beginning of its history this Court has recognized and
Few believed there were wide differences between the crimes under the jurisdiction of the applied the law of war as including that part of the law of nations which prescribes, for the
Court and crimes within the Uniform Code of Military Justice that would expose US conduct of war, the status, rights and duties of enemy nations as well as of enemy
personnel to the Court. Since US military lawyers were instrumental in drafting the individuals."97 It went on further to explain that Congress had not undertaken the task of
elements of crimes outlined in the Rome Statute, they ensured that most of the crimes codifying the specific offenses covered in the law of war, thus:
were consistent with those outlined in the UCMJ and gave strength to complementarity for
the US. Small areas of potential gaps between the UCMJ and the Rome Statute, military It is no objection that Congress in providing for the trial of such offenses has not itself
experts argued, could be addressed through existing military laws.87 x xx undertaken to codify that branch of international law or to mark its precise boundaries, or
to enumerate or define by statute all the acts which that law condemns. An Act of
Congress punishing ‘the crime of piracy as defined by the law of nations is an appropriate

exercise of its constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense
since it has adopted by reference the sufficiently precise definition of international law. x
xxSimilarly by the reference in the 15th Article of War to ‘offenders or offenses that x xx
by the law of war may be triable by such military commissions. Congress has incorporated
by reference, as within the jurisdiction of military commissions, all offenses which are
defined as such by the law of war x xx, and which may constitutionally be included within
that jurisdiction.98 x xx (Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has been
held that genocide, war crimes and crimes against humanity have attained the status of
customary international law. Some even go so far as to state that these crimes have
attained the status of jus cogens.99
Customary international law or international custom is a source of international law as
stated in the Statute of the ICJ.100 It is defined as the "general and consistent practice of
states recognized and followed by them from a sense of legal obligation." 101 In order to
establish the customary status of a particular norm, two elements must concur: State
practice, the objective element; and opiniojurissive necessitates, the subjective element. 102
State practice refers to the continuous repetition of the same or similar kind of acts or
norms by States.103 It is demonstrated upon the existence of the following elements: (1)
generality; (2) uniformity and consistency; and (3) duration.104 While, opiniojuris, the
psychological element, requires that the state practice or norm "be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by the existence
of a rule of law requiring it."105
"The term ‘juscogens’ means the ‘compelling law.’"106 Corollary, "a jus cogens norm holds
the highest hierarchical position among all other customary norms and principles."107 As a
result, jus cogens norms are deemed "peremptory and non-derogable."108 When applied to
international crimes, "jus cogens crimes have been deemed so fundamental to the
existence of a just international legal order that states cannot derogate from them, even
by agreement."109
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state
may exercise jurisdiction over an individual who commits certain heinous and widely
condemned offenses, even when no other recognized basis for jurisdiction exists." 110 "The
rationale behind this principle is that the crime committed is so egregious that it is
considered to be committed against all members of the international community" 111 and
thus granting every State jurisdiction over the crime.112
PoliRev | PIL Assignment No. 1|33
Therefore, even with the current lack of domestic legislation on the part of the US, it still
has both the doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found
in the Rome Statute is not declaratory of customary international law.
The first element of customary international law, i.e., "established, widespread, and
consistent practice on the part of States,"113 does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October 12, 2010, only 114 114 States
have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier,
or on July 1, 2002. The fact that 114 States out of a total of 194 115 countries in the world,
or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the
perceived principles contained in the Statute have attained the status of customary law
and should be deemed as obligatory international law. The numbers even tend to argue
against the urgency of establishing international criminal courts envisioned in the Rome
Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top
officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight
(8) years have elapsed since the Philippine representative signed the Statute, but the
treaty has not been transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opiniojuris] x xx." This statement
contains the two basic elements of custom: the material factor, that is how the states
behave, and the psychological factor or subjective factor, that is, why they behave the way
they do.
x xxx
The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of the
practice of states.
The required duration can be either short or long. x xx
x xxx
Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. x xx
 PoliRev | PIL Assignment No. 1|34

x xxx WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED
for lack of merit. No costs.
Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do SO ORDERED.
because they consider it obligatory to behave thus or do they do it only as a matter of
courtesy? Opiniojuris, or the belief that a certain form of behavior is obligatory, is what
makes practice an international rule. Without it, practice is not law.116 (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice,
among the different countries in the world that the prosecution of internationally
recognized crimes of genocide, etc. should be handled by a particular international criminal
court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological

element must be deemed non-existent, for an inquiry on why states behave the way they
do presupposes, in the first place, that they are actually behaving, as a matter of settled
and consistent practice, in a certain manner. This implicitly requires belief that the practice
in question is rendered obligatory by the existence of a rule of law requiring it. 117 Like the
first element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the
crimes enumerated therein as evidenced by it requiring State consent.118 Even further, the
Rome Statute specifically and unequivocally requires that: "This Statute is subject to
ratification, acceptance or approval by signatory States."119 These clearly negate the
argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be
afforded great respect. The power to enter into executive agreements has long been
recognized to be lodged with the President. As We held in Neri v. Senate Committee on
Accountability of Public Officers and Investigations, "[t]he power to enter into an executive
agreement is in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence."120 The rationale behind this principle is the
inviolable doctrine of separation of powers among the legislative, executive and judicial
branches of the government. Thus, absent any clear contravention of the law, courts
should exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-
Surrender Agreement ought to be in the form of a treaty, to be effective, has to be
rejected.

3. G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA,
Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; VALIDITY OF EXECUTIVE ORDER NO. 68 ESTABLISHING A
NATIONAL WAR CRIMES OFFICE. — Executive Order No. 68 which was issued by the
President of the Philippines on the 29th day of July, 1947, is valid in its section 3 that "The
Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the nation."
2. INTERNATIONAL LAW; VIOLATORS OF THE LAWS AND CUSTOMS OF WAR, OF
HUMANITY AND CIVILIZATION, LIABILITY AND RESPONSIBILITY OF. — In accordance with
the generally accepted principles of international law of the present day, including the
Hague Convention, the Geneva Convention and significant precedents of international
jurisprudence established by the United Nations, all those persons, military of civilian, who
have been guilty of planning, preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental thereto, in violation of the
laws and customs of war, of humanity and civilization, are held accountable therefor.
3. ID.; POWER OF THE PRESIDENT OF THE PHILIPPINES. — IN the promulgation and
enforcement of Executive Order No. 68, the President of the Philippines has acted in
conformity with the generally accepted principles and policies and international law which
are part of our constitution.
4. CONSTITUTIONAL LAW; POWER OF PRESIDENT AS COMMANDER IN CHIEF OR ARMED
FORCES OF THE PHILIPPINES. — The promulgation of said executive order is an exercise
by the President of his powers as Commander in Chief of all our armed forces.
5. ID.; ID.; — The President as Commander in Chief is fully empowered to consummate
this unfinished aspects of war, namely, the trial and punishment of war criminals, through
the issuance and enforcement of Executive Order No. 68.
6. INTERNATIONAL LAW; HAGUE AND GENEVA CONVENTION FORM PART OF THE LAW OF
THE PHILIPPINES; EVEN IF THE PHILIPPINES WAS NOT SIGNATORY THEREOF,
PoliRev | PIL Assignment No. 1|35
PROVISIONS OF PHILIPPINE CONSTITUTION HAS BEEN COMPREHENSIVE TO THAT
EFFECT. — The rules and regulations of the Hague and Geneva Conventions form part of
and are wholly based on the generally accepted principles of international law. In fact,
these rules and principles were accepted by the two belligerent nations, the United States
and Japan, who were signatories to the two Conventions. Such rules and principles,
therefore, form part of the law of our nation even if the Philippines was not a signatory to
the conventions embodying them, for our Constitution has been deliberately general and
extensive in its scope and is not confined to the recognition of rules and principles of
international law as contained in treaties to which our government may have been or shall
be a signatory.
7. id.; rights and obligations of a nation were not erased by assumption of full sovereignty
RIGHT TO TRY AND PUNISH CRIMES THERETOFORE COMMITTED. — When the crimes
charged against petitioner were allegedly committed, the Philippines was under the
sovereignty of the United States, and thus we were equally bound together with the United
Sates and with Japan, to the rights and obligations contained in the treaties between the
belligerent countries. These rights and obligations were not erased by our assumption of
full sovereignty. If at right, on our own, of trying and punishing those who committed
crimes against our people.
8. ID.; ID.; ID.; — War crimes committed against our people and our government while we
are a Commonwealth, are triable and punishable by our present Republic.
9. MILITARY COMMISSION GOVERNED BY SPECIAL LAW. — Military Commission is a
special military tribunal governed by a special law and not by the Rules of Court which
govern ordinary civil courts.
10. MILITARY COMMISSION; COUNSEL APPEARING BEFORE IT NOT NECESSARILY A
MEMBER OF THE PHILIPPINE BAR. — There is nothing in Executive Order No. 68 which
requires that counsel appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court. In fact, it is common
in military tribunals that counsel for the parties are usually military personnel who are
neither attorneys nor even possessed of legal training.
11. ID.; TRIAL OF WAR CRIMES BEFORE PHILIPPINE COURTS; ALLOWANCE OF AMERICAN
ATTORNEYS TO REPRESENT UNITED STATES. — The appointment of the two American
attorneys is not violative of our national sovereignty. It is only fair and proper that the
United States, which has submitted the vindication of crimes against her government and
her people to a tribunal of our nation, should be allowed representation in the trial of those
very crimes. If there has been any relinquishment of sovereignty, it has not been by our
government by the United States Government which has yielded to us the trial and
 PoliRev | PIL Assignment No. 1|36

punishment of her enemies. The least that we could do in the spirit of comity is to allow of the Philippines, that persons accused as war criminals shall be tried by military
them representation in said trials. commission, is clearly legislative in nature and intends to confer upon military commission
jurisdiction to try all persons charged with war crimes. But, the power to define and
12. ID.; ID.; ID. — It is of common knowledge that the United States and its people have allocate jurisdiction for the prosecution of persons accused of crimes is exclusively vested
been equally, if not more greatly, aggrieved by the crimes with which petitioner stands by the Constitution in Congress.
charged before the Military Commission. It can be considered a privilege for our Republic
that a leader nation should submit the vindication of the honor of its citizens and its 18. ID.; ID.; POWER TO ESTABLISH GOVERNMENT OFFICE. — Executive Order No.
government to a military tribunal of our country. establishes a National War Crimes Office; but, the power to establish government offices is
essentially legislative.
13. ID.; JURISDICTION; SUPREME COURT WILL NOT INTERFERE WITH DUE PROCESSES
OF MILITARY COMMISSION. — The Military Commission having been convened by virtue of 19. ID.; RULE-MAKING POWER OF SUPREME COURT; PRESIDENT HAS NO POWER, MUCH
a valid law, with jurisdiction over the crimes charged which fall under the provisions of LESS DELEGATE SUCH A POWER, TO PROVIDE RULES OF PROCEDURE FOR CONDUCT OF
Executive Order No. 68, and having jurisdiction over the person of the petitioner by having TRIALS. — Executive Order No. 68 provides rules of procedure for the conduct of trials
said petitioner in its custody, this court will not interfere with the due processes of such before the War Crimes Office. This provision on procedural subject constitutes a usurpation
Military Commission. of the rule-making power vested by the Constitution in the Supreme Court. It further
authorizes military commissions to adopt additional rules of procedure. If the President of
Per PERFECTO, J., dissenting: the Philippines cannot exercise the rule making power vested by the Constitution in the
Supreme Court, he cannot, with more reason, delegate that power to military
commissions.
14. ATTORNEYS AT LAW; ALIENS CANNOT PRACTICE LAW. — It appearing that Attys.
Hussey and Port are aliens and have not been authorized by the Supreme Court to practice
20. ID.; LEGISLATIVE POWER VESTED IN CONGRESS; USURPATION OF POWER TO
law, they cannot appear as prosecutors in a case pending before the War Crimes
APPROPRIATE FUNDS. — Executive Order No. 68 appropriates funds for the expenses of
Commission.
the National War Crimes Office. This constitutes another usurpation of legislative power, as
the power to vote appropriations belongs to Congress.
15. CONSTITUTIONAL LAW; LEGISLATIVE POWER VESTED IN CONGRESS; EXCEPTION. —
While there is no express provision in the fundamental law prohibiting the exercise of
legislative power by agencies other than Congress, a reading of the whole context of the21. ID.; EMERGENCY POWERS OF PRESIDENT UNDER COMMONWEALTH ACTS NOS. 600,
Constitution would dispel any doubt as to the constitutional intent that the legislative620 AND 671. — Commonwealth Acts Nos. 600, 620 and 671, granting the President of the
power is to be exercised exclusively by Congress, subject only to the veto power of the Philippines emergency powers to promulgate rules and regulations during national
emergency has ceased to have effect since the liberation of the Philippines, or at latest,
President, to his to suspend the writ of habeas corpus, to place any part of the Philippines
under martial law, to the rule-making power expressly vested by the Constitution in the upon the surrender of Japan on September 2, 1945. The absurdity of the contention that
Supreme these emergency acts continued in effect even after the surrender of Japan cannot be
Court.
gainsaid. Only a few months after liberation, and even before the surrender of Japan, the
16. ID.; ID.; SCOPE OF POWERS OF DIFFERENT GOVERNMENTAL DEPARTMENTS. — Congress started to function normally. To let the hypothesis on continuance prevail will
Because the powers vested by our Constitution to the several departments of the result in the existence of two distinct, separate and independent legislative organs. — the
government are in the nature of grants, not a recognition of pre-existing powers, no Congress and the President of the Philippines. Should there be any disagreement between
department of the government may exercise any power or authority not expressly granted Congress and the President, a possibility that no one can dispute, the President may take
by the Constitution or by law by virtue of express authority of the Constitution. advantage of the long recess of Congress (two-thirds of every year) to repeal and overrule
legislative enactments of Congress, and may set up a veritable system of dictatorship,
17. ID.; ID.; POWER OF PRESIDENT TO PROMULGATE EXECUTIVE ORDER DEFINING AND absolutely repugnant to the letter and spirit of the Constitution.
ALLOCATING JURISDICTION FOR PROSECUTION OF WAR CRIMES ON MILITARY
COMMISSION. — The provision in Executive Order No. 68 (series of 1947) of the President 22. STATUTORY CONSTRUCTION; PRESUMPTION THAT LEGISLATIVE BODY DID NOT
 PoliRev | PIL Assignment No. 1|37

INTEND TO VIOLATE CONSTITUTION. — It has never been the purpose of the National
Assembly to extend the delegation (embodied in Commonwealth Acts Nos. 600, 620 and
671) beyond the emergency created by war, as to extent it farther would be violate of the
express provisions of the Constitution. We are of the opinion that there is no doubt on this
question; but, if there could still be any, the same should be resolved in favor of the
presumption that the National Assembly did not intend to violate the fundamental law.
23. CONSTITUTIONAL LAW; DUE PROCESS AND EQUAL PROTECTION OF LAW. — Executive
Order No. 68 violates the fundamental guarantees of due process and equal protection of
the law, because it permits the admission of many kinds of evidence by which no innocent
person can afford to get acquittal, and by which it is impossible to determine whether an
accused is guilt or not beyond all reasonable doubt.
Robert Port who are not attorneys authorized by the Supreme Court to practice law in the
Philippines is a diminution of our personality as an independent state and their
appointment as prosecutor are a violation of our Constitution for the reason that they are
not qualified to practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no personality as prosecution the United
State not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that —

The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the of the nation.
MORAN, C.J.:
In accordance with the generally accepted principle of international law of the present day
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and including the Hague Convention the Geneva Convention and significant precedents of
Commanding General of the Japanese Imperial Forces in The Philippines during a period international jurisprudence established by the United Nation all those person military or
covering 19433 and 19444 who is now charged before a military Commission convened by civilian who have been guilty of planning preparing or waging a war of aggression and of
the Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded the commission of crimes and offenses consequential and incidental thereto in violation of
and failed "to discharge his duties as such command, permitting them to commit brutal the laws and customs of war, of humanity and civilization are held accountable therefor.
atrocities and other high crimes against noncombatant civilians and prisoners of the Consequently in the promulgation and enforcement of Execution Order No. 68 the
Imperial Japanese Forces in violation of the laws and customs of war" — comes before this President of the Philippines has acted in conformity with the generally accepted and
Court seeking to establish the illegality of Executive Order No. 68 of the President of the policies of international law which are part of the our Constitution.
Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case before the Military Commission and to The promulgation of said executive order is an exercise by the President of his power as
permanently prohibit respondents from proceeding with the case of petitioners. Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said —
In support of his case petitioner tenders the following principal arguments.
War is not ended simply because hostilities have ceased. After cessation of armed
First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the hostilities incident of war may remain pending which should be disposed of as in time of
provision of our constitutional law but also our local laws to say nothing of the fact (that) war. An importance incident to a conduct of war is the adoption of measure by the military
the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and command not only to repel and defeat the enemies but to seize and subject to disciplinary
Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not measure those enemies who in their attempt to thwart or impede our military effort have
based on law, national and international." Hence petitioner argues — "That in view off the violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to
fact that this commission has been empanelled by virtue of an unconstitutional law an create a military commission for the trial and punishment of war criminals is an aspect of
illegal order this commission is without jurisdiction to try herein petitioner." waging war. And in the language of a writer a military commission has jurisdiction so long
as a technical state of war continues. This includes the period of an armistice or military
Second. — That the participation in the prosecution of the case against petitioner before occupation up to the effective of a treaty of peace and may extend beyond by treaty
the Commission in behalf of the United State of America of attorneys Melville Hussey and

agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar Association
Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate
this unfinished aspect of war namely the trial and punishment of war criminal through the
issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner
for acts committed in violation of the Hague Convention and the Geneva Convention
because the Philippines is not a signatory to the first and signed the second only in 1947.
It cannot be denied that the rules and regulation of the Hague and Geneva conventions
form, part of and are wholly based on the generally accepted principals of international
law. In facts these rules and principles were accepted by the two belligerent nation the
United State and Japan who were signatories to the two Convention, Such rule and
principles therefore form part of the law of our nation even if the Philippines was not a
signatory to the conventions embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the recognition of rule and
principle of international law as continued inn treaties to which our government may have
been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the
Philippines was under the sovereignty of United States and thus we were equally bound
together with the United States and with Japan to the right and obligation contained in the
treaties between the belligerent countries. These rights and obligation were not erased by
our assumption of full sovereignty. If at all our emergency as a free state entitles us to
enforce the right on our own of trying and punishing those who committed crimes against
crimes against our people. In this connection it is well to remember what we have said in
the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect
the prosecution of those charged with the crime of treason committed during then
Commonwealth because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we
were a Commonwealth aretriable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey
and Robert Port in the prosecution of his case on the ground that said attorney's are not
qualified to practice law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our national sovereignty.
PoliRev | PIL Assignment No. 1|38
In the first place respondent Military Commission is a special military tribunal governed by
a special law and not by the Rules of court which govern ordinary civil court. It has already
been shown that Executive Order No. 68 which provides for the organization of such
military commission is a valid and constitutional law. There is nothing in said executive
order which requires that counsel appearing before said commission must be attorneys
qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it
is common in military tribunals that counsel for the parties are usually military personnel
who are neither attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the
vindication of crimes against her government and her people to a tribunal of our nation
should be allowed representation in the trial of those very crimes. If there has been any
relinquishment of sovereignty it has not been by our government but by the United State
Government which has yielded to us the trial and punishment of her enemies. The least
that we could do in the spirit of comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that
the United State and its people have been equally if not more greatly aggrieved by the
crimes with which petitioner stands charged before the Military Commission. It can be
considered a privilege for our Republic that a leader nation should submit the vindication of
the honor of its citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction
over the crimes charged which fall under the provisions of Executive Order No. 68, and
having said petitioner in its custody, this Court will not interfere with the due process of
such Military commission.
For all the foregoing the petition is denied with costs de oficio.
 PoliRev | PIL Assignment No. 1|39

4. G.R. No. 76607 February 26, 1990

UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND YVONNE

REEVES, petitioners, 1. CONSTITUTIONAL LAW; DOCTRINE OF STATE IMMUNITY FROM SUIT; GENERALLY
vs. ACCEPTED PRINCIPLE OF INTERNATIONAL LAW; EMBODIED IN PHILIPPINE
HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional Trial Court, CONSTITUTION. — The rule that a state may not be sued without its consent, now
Angeles City, ROBERTO T. VALENCIA, EMERENCIANA C. TANGLAO, AND PABLO C. expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally
DEL PILAR, respondents. accepted principles of international law that we have adopted as part of the law of our land
under Article II, Section 2. This latter provision merely reiterates a policy earlier embodied
G.R. No. 79470 February 26, 1990 in the 1935 and 1973 Constitutions and also intended to manifest our resolve to abide by
the rules of the international community.
UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/SGT. USAF, WILFREDO
BELSA, PETER ORASCION AND ROSE CARTALLA, petitioners, 2. ID., ID., ID., PRINCIPLE DEEMED INCORPORATED IN THE LAW OF EVERY CIVILIZED
vs. STATE; STATE IS AUTOMATICALLY OBLIGATED TO COMPLY WITH THE PRINCIPLE. — Even
HON. RODOLFO D. RODRIGO, as Presiding Judge of Branch 7, Regional Trial Court without such affirmation, we would still be bound by the generally accepted principles of
(BAGUIO CITY), La Trinidad, Benguet and FABIAN GENOVE, respondents. international law under the doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed incorporated in the law of every civilized
G.R. No. 80018 February 26, 1990 state as a condition and consequence of its membership in the society of nations. Upon its
admission to such society, the state is automatically obligated to comply with these
UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and STEVEN F. principles in its relations with other states.
BOSTICK, petitioners,
vs. 3. ID.; ID.; BASIS. — As applied to the local state, the doctrine of state immunity is based
HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial Court, Branch on the justification given by Justice Holmes that "there can be no legal right against the
66, Capas, Tarlac, and LUIS BAUTISTA, respondents. authority which makes the law on which the right depends." There are other practical
reasons for the enforcement of the doctrine. In the case of the foreign state sought to be
G.R. No. 80258 February 26, 1990
impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction
UNITED STATES OF AMERICA, MAJOR GENERAL MICHAEL P. C. CARNS, AIC
over one another. A contrary disposition would, in the language of a celebrated case,
ERNEST E. RIVENBURGH, AIC ROBIN BLEVINS, SGT. NOEL A. GONZALES, SGT.
"unduly vex the peace of nations."cralaw virtua1aw library
THOMAS MITCHELL, SGT. WAYNE L. BENJAMIN, ET AL., petitioners,
vs.
4. ID., ID., APPLIES TO OFFICIALS OF THE STATE FOR ACTS PERFORMED IN THE
HON. CONCEPCION S. ALARCON VERGARA, as Presiding Judge, Branch 62
DISCHARGE OF THEIR DUTIES. — While the doctrine appears to prohibit only suits against
REGIONAL TRIAL COURT, Angeles City, and RICKY SANCHEZ, FREDDIE SANCHEZ
the state without its consent, it is also applicable to complaints filed against officials of the
AKA FREDDIE RIVERA, EDWIN MARIANO, AKA JESSIE DOLORES SANGALANG, ET
state for acts allegedly performed by them in the discharge of their duties. The rule is that
AL., respondents.
if the judgment against such officials will require the state itself to perform an affirmative
act to satisfy the same, such as the appropriation of the amount needed to pay the
Luna, Sison&Manas Law Office for petitioners.
damages awarded against them, the suit must be regarded as against the state itself
although it has not been formally impleaded. In such a situation, the state may move to
SYLLABUS
dismiss the complaint on the ground that it has been filed without its consent.

5. ID., ID., NOT ABSOLUTE AND MAY BE SUED IS STATE GIVES CONSENT. — The doctrine

is sometimes derisively called "the royal prerogative of dishonesty" because of the privilege
it grants the state to defeat any legitimate claim against it by simply invoking its non-
suability. That is hardly fair, at least in democratic societies, for the state is not an
unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the doctrine is not
absolute and does not say the state may not be sued under any circumstance. On the
contrary, the rule says that the state may not be sued without its consent, which clearly
imports that it may be sued if it consents.
6. ID., ID., ID., CONSENT MAY BE GIVEN EXPRESSLY OR IMPLIEDLY. — The consent of the
state to be sued may be manifested expressly or impliedly. Express consent may be
embodied in a general law or a special law. Consent is implied when the state enters into a
contract or it itself commences litigation.
7. ID., ID., ID., ID., WAIVER OF IMMUNITY; INSTANCES. — The general law waiving the
immunity of the state from suit is found in Act No. 3083, under which the Philippine
government "consents and submits to be sued upon any moneyed claim involving liability
arising from contract, express or implied, which could serve as a basis of civil action
between private parties." In Merritt v. Government of the Philippine Islands, a special law
was passed to enable a person to sue the government for an alleged tort. When the
government enters into a contract, it is deemed to have descended to the level of the other
contracting party and divested of its sovereign immunity from suit with its implied consent.
Waiver is also implied when the government files a complaint, thus opening itself to a
counterclaim.
8. ID., ID., ID., ID., ID., ID., EXCEPTIONS. — The above rules are subject to qualification.
Express consent is effected only by the will of the legislature through the medium of a duly
enacted statute. We have held that not all contracts entered into by the government will
operate as a waiver of its non-suability; distinction must be made between its sovereign
and proprietary acts. As for the filing of a complaint by the government, suability will result
only where the government is claiming affirmative relief from the defendant.
9. ID., ID., ID., ID., ID., UNITED STATES OF AMERICA DEEMED TO HAVE IMPLIEDLY
WAIVED ITS NON-SUABILITY IF IT HAS ENTERED INTO A CONTRACT IN ITS PROPRIETARY
CAPACITY. — There is no question that the United States of America, like any other state,
will be deemed to have impliedly waived its non-suability if it has entered into a contract in
its proprietary or private capacity. It is only when the contract involves its sovereign or
governmental capacity that no such waiver may be implied. This was our ruling in United
States of America v. Ruiz, where the transaction in question dealt with the improvement of
the wharves in the naval installation at Subic Bay. As this was a clearly governmental
function, we held that the contract did not operate to divest the United States of its
sovereign immunity from suit.
PoliRev | PIL Assignment No. 1|40
10. ID., ID., ID., ID., ID., CHARGES MAY NOT BE SUMMARILY DISMISSED ON MERE
ASSERTION THAT ACTS ARE IMPUTABLE TO THE UNITED STATES OF AMERICA. — The
other petitioners in the cases before us all aver they have acted in the discharge of their
official functions as officers or agents of the United States. However, this is a matter of
evidence. The charges against them may not be summarily dismissed on their mere
assertion that their acts are imputable to the United States of America, which has not
given its consent to be sued. In fact, the defendants are sought to be held answerable for
personal torts in which the United States itself is not involved. If found liable, they and
they alone must satisfy the judgment.
11. ID., ID., ID., ID., ID., PETITIONERS CHARGED WITH THE ENFORCEMENT OF LAW
REGARDING PROHIBITED DRUGS ARE AGENTS OF THE UNITED STATES. — It is clear from
a study of the records of G.R. No. 80018 that the individually-named petitioners therein
were acting in the exercise of their official functions when they conducted the buy-bust
operation against the complainant and thereafter testified against him at his trial. The said
petitioners were in fact connected with the Air Force Office of Special Investigators and
were charged precisely with the function of preventing the distribution, possession and use
of prohibited drugs and prosecuting those guilty of such acts. It cannot for a moment be
imagined that they were acting in their private or unofficial capacity when they
apprehended and later testified against the complainant. It follows that for discharging
their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
12. ID., ID., ID., ID., ID., SUABILITY AND LIABILITY, DIFFERENTIATED. — There seems to
be a failure to distinguish between suability and liability and a misconception that the two
terms are synonymous. Suability depends on the consent of the state to be sued, liability
on the applicable law and the established facts. The circumstance that a state is suable
does not necessarily mean that it is liable; on the other hand, it can never be held liable if
it does not first consent to be sued. Liability is not conceded by the mere fact that the
state has allowed itself to be sued. When the state does waive its sovereign immunity, it is
only giving the plaintiff the chance to prove, if it can, that the defendant is liable.
13. ID., ID., ID., ID., ID., ARTICLE 2180 OF THE CIVIL CODE ESTABLISHES A RULE OF
LIABILITY. — The private respondent invokes Article 2180 of the Civil Code which holds the
government liable if it acts through a special agent. The argument, it would seem, is
premised on the ground that since the officers are designated "special agents," the United
States government should be liable for their torts. The said article establishes a rule of
liability, not suability. The government may be held liable under this rule only if it first
allows itself to be sued through any of the accepted forms of consent.

14. ID., ID., ID., ID., ID., AN AGENT PERFORMING REGULAR FUNCTIONS IS NOT A
SPECIAL AGENT EVEN IF SO DENOMINATED; ARTICLE APPLIES ONLY TO PHILIPPINE
GOVERNMENT. — Moreover, the agent performing his regular functions is not a special
agent even if he is so denominated, as in the case at bar. No less important, the said
provision appears to regulate only the relations of the local state with its inhabitants and,
hence, applies only to the Philippine government and not to foreign governments
impleaded in our courts.
15. ID., ID., ID., ID., ID., EXPRESS WAIVER MUST BE EFFECTED THROUGH A DULY-
ENACTED STATUTE. — We reject the conclusion of the trial court that the answer filed by
the special counsel of the Office of the Sheriff Judge Advocate of Clark Air Base was a
submission by the United States government to its jurisdiction. As we noted in Republic v.
Purisima, express waiver of immunity cannot be made by a mere counsel of the
government but must be effected through a duly-enacted statute. Neither does such
answer come under the implied forms of consent as earlier discussed.
16. ID., ID., ID., ID., ID., INQUIRY MUST BE MADE AS TO WHAT CAPACITY PETITIONERS
WERE ACTING. — But even as we are certain that individual petitioners in G.R. No. 80018
were acting in the discharge of their official functions, we hesitate to make the same
conclusion in G.R. No. 80258. The contradictory factual allegations in this case deserve in
our view a closer study of what actually happened to the plaintiffs. The record is too
meager to indicate if the defendants were really discharging their official duties or had
actually exceeded their authority when the incident in question occurred. Lacking this
information, this Court cannot directly decide this case. The needed inquiry must first be
made by the lower court so it may assess and resolve the conflicting claims of the parties
on the basis of the evidence that has yet to be presented at the trial. Only after it shall
have determined in what capacity the petitioners were acting at the time of the incident in
question will this Court determine, if still necessary, if the doctrine of state immunity is
applicable.
17. ID., ID., ID., ID., ID., DOCTRINE CANNOT BE INVOKED WHERE THE STATE ENTERED
INTO A CONTRACT IN THE DISCHARGE OF ITS PROPRIETARY FUNCTION; CASE AT BAR. —
From the circumstances, the Court can assume that the restaurant services offered at the
John Hay Air Station partake of the nature of a business enterprise undertaken by the
United States government in its proprietary capacity. Such services are not extended to
the American servicemen for free as a perquisite of membership in the Armed Forces of the
United States. Neither does it appear that they are exclusively offered to these
servicemen; on the contrary, it is well known that they are available to the general public
as well, including the tourists in Baguio City, many of whom make it a point to visit John
Hay for this reason. All persons availing themselves of this facility pay for the privilege like
all other customers as in ordinary restaurants. Although the prices are concededly
PoliRev | PIL Assignment No. 1|41
reasonable and relatively low, such services are undoubtedly operated for profit, as a
commercial and not a governmental activity. The consequence of this finding is that the
petitioners cannot invoke the doctrine of state immunity to justify the dismissal of the
damage suit against them by Genove. Such defense will not prosper even if it be
established that they were acting as agents of the United States when they investigated
and later dismissed Genove. For that matter, not even the United States government itself
can claim such immunity. The reason is that by entering into the employment contract with
Genove in the discharge of its proprietary functions, it impliedly divested itself of its
sovereign immunity from suit.
18. LABOR AND SOCIAL LEGISLATION; TERMINATION OF EMPLOYMENT; DISMISSAL FOR
THE UNBELIEVABLY NAUSEATING ACT IS PROPER. — The dismissal of the private
respondent was decided upon only after a thorough investigation where it was established
beyond doubt that he had polluted the soup stock with urine. The investigation, in fact, did
not stop there. Despite the definitive finding of Genove’s guilt, the case was still referred to
the board of arbitrators provided for in the collective bargaining agreement. This board
unanimously affirmed the findings of the investigators and recommended Genove’s
dismissal. There was nothing arbitrary about the proceedings. The petitioners acted quite
properly in terminating the private respondent’s employment for his unbelievably
nauseating act. It is surprising that he should still have the temerity to file his complaint
for damages after committing his utterly disgusting offense.
19. ID.; ID.; BARBERSHOPS ARE NOT AGENCIES OF THE UNITED STATES ARMED FORCES;
IMMUNITY FROM SUIT CANNOT BE INVOKED. — Concerning G.R. No. 76607, we also find
that the barbershops subject of the concessions granted by the United States government
are commercial enterprises operated by private persons. They are not agencies of the
United States Armed Forces nor are their facilities demandable as a matter of right by the
American servicemen. This being the case, the petitioners cannot plead any immunity from
the complaint filed by the private respondents in the court below. The contracts in question
being decidedly commercial, the conclusion reached in the United States of America v. Ruiz
case cannot be applied here.
CRUZ, J.:
These cases have been consolidated because they all involve the doctrine of state
immunity. The United States of America was not impleaded in the complaints below but
has moved to dismiss on the ground that they are in effect suits against it to which it has
not consented. It is now contesting the denial of its motions by the respondent judges.

In G.R. No. 76607, the private respondents are suing several officers of the U.S. Air Force
stationed in Clark Air Base in connection with the bidding conducted by them for contracts
for barber services in the said base.
On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area Exchange,
U.S. Air Force, solicited bids for such contracts through its contracting officer, James F.
Shaw. Among those who submitted their bids were private respondents Roberto T.
Valencia, Emerenciana C. Tanglao, and Pablo C. delPilar. Valencia had been a
concessionaire inside Clark for 34 years; delPilar for 12 years; and Tanglao for 50 years.
The bidding was won by Ramon Dizon, over the objection of the private respondents, who
claimed that he had made a bid for four facilities, including the Civil Engineering Area,
which was not included in the invitation to bid.
The private respondents complained to the Philippine Area Exchange (PHAX). The latter,
through its representatives, petitioners Yvonne Reeves and Frederic M. Smouse explained
that the Civil Engineering concession had not been awarded to Dizon as a result of the
February 24, 1986 solicitation. Dizon was already operating this concession, then known as
the NCO club concession, and the expiration of the contract had been extended from June
30, 1986 to August 31, 1986. They further explained that the solicitation of the CE
barbershop would be available only by the end of June and the private respondents would
be notified.
On June 30, 1986, the private respondents filed a complaint in the court below to compel
PHAX and the individual petitioners to cancel the award to defendant Dizon, to conduct a
rebidding for the barbershop concessions and to allow the private respondents by a writ of
preliminary injunction to continue operating the concessions pending litigation. 1
Upon the filing of the complaint, the respondent court issued an ex parte order directing
the individual petitioners to maintain the status quo.
On July 22, 1986, the petitioners filed a motion to dismiss and opposition to the petition for
preliminary injunction on the ground that the action was in effect a suit against the United
States of America, which had not waived its non-suability. The individual defendants, as
official employees of the U.S. Air Force, were also immune from suit.
On the same date, July 22, 1986, the trial court denied the application for a writ of
preliminary injunction.
On October 10, 1988, the trial court denied the petitioners' motion to dismiss, holding in
part as follows:
PoliRev | PIL Assignment No. 1|42
From the pleadings thus far presented to this Court by the parties, the Court's attention is
called by the relationship between the plaintiffs as well as the defendants, including the US
Government, in that prior to the bidding or solicitation in question, there was a binding
contract between the plaintiffs as well as the defendants, including the US Government. By
virtue of said contract of concession it is the Court's understanding that neither the US
Government nor the herein principal defendants would become the employer/s of the
plaintiffs but that the latter are the employers themselves of the barbers, etc. with the
employer, the plaintiffs herein, remitting the stipulated percentage of commissions to the
Philippine Area Exchange. The same circumstance would become in effect when the
Philippine Area Exchange opened for bidding or solicitation the questioned barber shop
concessions. To this extent, therefore, indeed a commercial transaction has been entered,
and for purposes of the said solicitation, would necessarily be entered between the
plaintiffs as well as the defendants.
The Court, further, is of the view that Article XVIII of the RP-US Bases Agreement does not
cover such kind of services falling under the concessionaireship, such as a barber shop
concession. 2
On December 11, 1986, following the filing of the herein petition for certiorari and
prohibition with preliminary injunction, we issued a temporary restraining order against
further proceedings in the court below. 3
In G.R. No. 79470, Fabian Genove filed a complaint for damages against petitioners
Anthony Lamachia, WilfredoBelsa, Rose Cartalla and Peter Orascion for his dismissal as
cook in the U.S. Air Force Recreation Center at the John Hay Air Station in Baguio City. It
had been ascertained after investigation, from the testimony of BelsaCartalla and Orascion,
thatGenove had poured urine into the soup stock used in cooking the vegetables served to
the club customers. Lamachia, as club manager, suspended him and thereafter referred
the case to a board of arbitrators conformably to the collective bargaining agreement
between the Center and its employees. The board unanimously found him guilty and
recommended his dismissal. This was effected on March 5, 1986, by Col. David C. Kimball,
Commander of the 3rd Combat Support Group, PACAF Clark Air Force Base. Genove's
reaction was to file Mscomplaint in the Regional Trial Court of Baguio City against the
individual petitioners. 4
On March 13, 1987, the defendants, joined by the United States of America, moved to
dismiss the complaint, alleging that Lamachia, as an officer of the U.S. Air Force stationed
at John Hay Air Station, was immune from suit for the acts done by him in his official
capacity. They argued that the suit was in effect against the United States, which had not
given its consent to be sued.
 PoliRev | PIL Assignment No. 1|43

This motion was denied by the respondent judge on June 4, 1987, in an order which read capacity when they did the acts complained of and that the complaint against them was in
in part: effect a suit against the United States without its consent.

It is the understanding of the Court, based on the allegations of the complaint — which
have been hypothetically admitted by defendants upon the filing of their motion to dismiss
— that although defendants acted initially in their official capacities, their going beyond
what their functions called for brought them out of the protective mantle of whatever
immunities they may have had in the beginning. Thus, the allegation that the acts
complained of were illegal, done. with extreme bad faith and with pre-conceived sinister
plan to harass and finally dismiss the plaintiff, gains significance. 5
The motion was denied by the respondent judge in his order dated September 11, 1987,
which held that the claimed immunity under the Military Bases Agreement covered only
criminal and not civil cases. Moreover, the defendants had come under the jurisdiction of
the court when they submitted their answer.7
Following the filing of the herein petition for certiorari and prohibition with preliminary
injunction, we issued on October 14, 1987, a temporary restraining order. 8

The petitioners then came to this Court seeking certiorari and prohibition with preliminary In G.R. No. 80258, a complaint for damages was filed by the private respondents against
injunction. the herein petitioners (except the United States of America), for injuries allegedly
sustained by the plaintiffs as a result of the acts of the defendants. 9 There is a conflict of
In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in Camp O' factual allegations here. According to the plaintiffs, the defendants beat them up,
Donnell, an extension of Clark Air Base, was arrested following a buy-bust operation handcuffed them and unleashed dogs on them which bit them in several parts of their
conducted by the individual petitioners herein, namely, Tomi J. King, Darrel D. Dye and bodies and caused extensive injuries to them. The defendants deny this and claim the
Stephen F. Bostick, officers of the U.S. Air Force and special agents of the Air Force Office plaintiffs were arrested for theft and were bitten by the dogs because they were struggling
of Special Investigators (AFOSI). On the basis of the sworn statements made by them, an and resisting arrest, The defendants stress that the dogs were called off and the plaintiffs
information for violation of R.A. 6425, otherwise known as the Dangerous Drugs Act, was were immediately taken to the medical center for treatment of their wounds.
filed against Bautista in the Regional Trial Court of Tarlac. The above-named officers
testified against him at his trial. As a result of the filing of the charge, Bautista was In a motion to dismiss the complaint, the United States of America and the individually
dismissed from his employment. He then filed a complaint for damages against the named defendants argued that the suit was in effect a suit against the United States,
individual petitioners herein claiming that it was because of their acts that he was which had not given its consent to be sued. The defendants were also immune from suit
removed. 6 under the RP-US Bases Treaty for acts done by them in the performance of their official
functions.
During the period for filing of the answer, Mariano Y. Navarro a special counsel assigned to
the International Law Division, Office of the Staff Judge Advocate of Clark Air Base, The motion to dismiss was denied by the trial court in its order dated August 10, 1987,
entered a special appearance for the defendants and moved for an extension within which reading in part as follows:
to file an "answer and/or other pleadings." His reason was that the Attorney General of the
United States had not yet designated counsel to represent the defendants, who were being The defendants certainly cannot correctly argue that they are immune from suit. The
sued for their official acts. Within the extended period, the defendants, without the allegations, of the complaint which is sought to be dismissed, had to be hypothetically
assistance of counsel or authority from the U.S. Department of Justice, filed their answer. admitted and whatever ground the defendants may have, had to be ventilated during the
They alleged therein as affirmative defenses that they had only done their duty in the trial of the case on the merits. The complaint alleged criminal acts against the individually-
enforcement of the laws of the Philippines inside the American bases pursuant to the RP- named defendants and from the nature of said acts it could not be said that they are Acts
US Military Bases Agreement. of State, for which immunity should be invoked. If the Filipinos themselves are duty bound
to respect, obey and submit themselves to the laws of the country, with more reason, the
On May 7, 1987, the law firm of Luna, Sison and Manas, having been retained to represent members of the United States Armed Forces who are being treated as guests of this
the defendants, filed with leave of court a motion to withdraw the answer and dismiss the country should respect, obey and submit themselves to its laws. 10
complaint. The ground invoked was that the defendants were acting in their official

and so was the motion for reconsideration. The defendants submitted their answer as
required but subsequently filed their petition for certiorari and prohibition with preliminary
injunction with this Court. We issued a temporary restraining order on October 27, 1987. 11
II
The rule that a state may not be sued without its consent, now expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II,
Section 2. This latter provision merely reiterates a policy earlier embodied in the 1935 and
1973 Constitutions and also intended to manifest our resolve to abide by the rules of the
international community.
Even without such affirmation, we would still be bound by the generally accepted principles
of international law under the doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed incorporated in the law of every civilized
state as a condition and consequence of its membership in the society of nations. Upon its
admission to such society, the state is automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification
given by Justice Holmes that "there can be no legal right against the authority which
makes the law on which the right depends." 12 There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the
local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet
imperium. All states are sovereign equals and cannot assert jurisdiction over one another.
A contrary disposition would, in the language of a celebrated case, "unduly vex the peace
of nations." 13
While the doctrine appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. The rule is that if the judgment against such
officials will require the state itself to perform an affirmative act to satisfy the same, such
as the appropriation of the amount needed to pay the damages awarded against them, the
suit must be regarded as against the state itself although it has not been formally
impleaded. 14 In such a situation, the state may move to dismiss the complaint on the
ground that it has been filed without its consent.
The doctrine is sometimes derisively called "the royal prerogative of dishonesty" because of
the privilege it grants the state to defeat any legitimate claim against it by simply invoking
its non-suability. That is hardly fair, at least in democratic societies, for the state is not an
PoliRev | PIL Assignment No. 1|44
unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the doctrine is not
absolute and does not say the state may not be sued under any circumstance. On the
contrary, the rule says that the state may not be sued without its consent, which clearly
imports that it may be sued if it consents.
The consent of the state to be sued may be manifested expressly or impliedly. Express
consent may be embodied in a general law or a special law. Consent is implied when the
state enters into a contract or it itself commences litigation.
The general law waiving the immunity of the state from suit is found in Act No. 3083,
under which the Philippine government "consents and submits to be sued upon any
moneyed claim involving liability arising from contract, express or implied, which could
serve as a basis of civil action between private parties." In Merritt v. Government of
the Philippine Islands, 15 a special law was passed to enable a person to sue the
government for an alleged tort. When the government enters into a contract, it is deemed
to have descended to the level of the other contracting party and divested of its sovereign
immunity from suit with its implied consent. 16 Waiver is also implied when the government
files a complaint, thus opening itself to a counterclaim. 17
The above rules are subject to qualification. Express consent is effected only by the will of
the legislature through the medium of a duly enacted statute. 18 We have held that not all
contracts entered into by the government will operate as a waiver of its non-suability;
distinction must be made between its sovereign and proprietary acts. 19 As for the filing of
a complaint by the government, suability will result only where the government is claiming
affirmative relief from the defendant. 20
In the case of the United States of America, the customary rule of international law on
state immunity is expressed with more specificity in the RP-US Bases Treaty. Article III
thereof provides as follows:
It is mutually agreed that the United States shall have the rights, power and authority
within the bases which are necessary for the establishment, use, operation and defense
thereof or appropriate for the control thereof and all the rights, power and authority within
the limits of the territorial waters and air space adjacent to, or in the vicinity of, the bases
which are necessary to provide access to them or appropriate for their control.
The petitioners also rely heavily on Baer v. Tizon, 21 along with several other decisions, to
support their position that they are not suable in the cases below, the United States not
having waived its sovereign immunity from suit. It is emphasized that in Baer, the Court
held:

The invocation of the doctrine of immunity from suit of a foreign state without its consent
is appropriate. More specifically, insofar as alien armed forces is concerned, the starting
point is Raquiza v. Bradford, a 1945 decision. In dismissing a habeas corpus petition for
the release of petitioners confined by American army authorities, Justice Hilado speaking
for the Court, cited Coleman v. Tennessee, where it was explicitly declared: 'It is well
settled that a foreign army, permitted to march through a friendly country or to be
stationed in it, by permission of its government or sovereign, is exempt from the civil and
criminal jurisdiction of the place.' Two years later, in Tubb and Tedrow v. Griess, this Court
relied on the ruling in Raquiza v. Bradford and cited in support thereof excerpts from the
works of the following authoritative writers: Vattel, Wheaton, Hall, Lawrence, Oppenheim,
Westlake, Hyde, and McNair and Lauterpacht. Accuracy demands the clarification that after
the conclusion of the Philippine-American Military Bases Agreement, the treaty provisions
should control on such matter, the assumption being that there was a manifestation of the
submission to jurisdiction on the part of the foreign power whenever appropriate. More to
the point is Syquia v. Almeda Lopez, where plaintiffs as lessors sued the Commanding
General of the United States Army in the Philippines, seeking the restoration to them of the
apartment buildings they owned leased to the United States armed forces stationed in the
Manila area. A motion to dismiss on the ground of non-suability was filed and upheld by
respondent Judge. The matter was taken to this Court in a mandamus proceeding. It
failed. It was the ruling that respondent Judge acted correctly considering that the 4 action
must be considered as one against the U.S. Government. The opinion of Justice
Montemayor continued: 'It is clear that the courts of the Philippines including the Municipal
Court of Manila have no jurisdiction over the present case for unlawful detainer. The
question of lack of jurisdiction was raised and interposed at the very beginning of the
action. The U.S. Government has not given its consent to the filing of this suit which is
essentially against her, though not in name. Moreover, this is not only a case of a citizen
filing a suit against his own Government without the latter's consent but it is of a citizen
firing an action against a foreign government without said government's consent, which
renders more obvious the lack of jurisdiction of the courts of his country. The principles of
law behind this rule are so elementary and of such general acceptance that we deem it
unnecessary to cite authorities in support thereof then came Marvel Building Corporation v.
Philippine War Damage Commission, where respondent, a United States Agency
established to compensate damages suffered by the Philippines during World War II was
held as falling within the above doctrine as the suit against it would eventually be a charge
against or financial liability of the United States Government because ... , the Commission
has no funds of its own for the purpose of paying money judgments.' The Syquia ruling
was again explicitly relied upon in Marquez Lim v. Nelson, involving a complaint for the
recovery of a motor launch, plus damages, the special defense interposed being 'that the
vessel belonged to the United States Government, that the defendants merely acted as
agents of said Government, and that the United States Government is therefore the real
party in interest.' So it was in Philippine Alien Property Administration v. Castelo, where it
PoliRev | PIL Assignment No. 1|45
was held that a suit against Alien Property Custodian and the Attorney General of the
United States involving vested property under the Trading with the Enemy Act is in
substance a suit against the United States. To the same effect is Parreno v. McGranery, as
the following excerpt from the opinion of justice Tuazon clearly shows: 'It is a widely
accepted principle of international law, which is made a part of the law of the land (Article
II, Section 3 of the Constitution), that a foreign state may not be brought to suit before the
courts of another state or its own courts without its consent.' Finally, there is Johnson v.
Turner, an appeal by the defendant, then Commanding General, Philippine Command (Air
Force, with office at Clark Field) from a decision ordering the return to plaintiff of the
confiscated military payment certificates known as scrip money. In reversing the lower
court decision, this Tribunal, through Justice Montemayor, relied on Syquia v.
Almeda Lopez, explaining why it could not be sustained.
It bears stressing at this point that the above observations do not confer on the United
States of America a blanket immunity for all acts done by it or its agents in the Philippines.
Neither may the other petitioners claim that they are also insulated from suit in this
country merely because they have acted as agents of the United States in the discharge of
their official functions.
There is no question that the United States of America, like any other state, will be deemed
to have impliedly waived its non-suability if it has entered into a contract in its proprietary
or private capacity. It is only when the contract involves its sovereign or governmental
capacity that no such waiver may be implied. This was our ruling in UnitedStates of
America v. Ruiz, 22 where the transaction in question dealt with the improvement of the
wharves in the naval installation at Subic Bay. As this was a clearly governmental function,
we held that the contract did not operate to divest the United States of its sovereign
immunity from suit. In the words of Justice Vicente Abad Santos:
The traditional rule of immunity exempts a State from being sued in the courts of another
State without its consent or waiver. This rule is a necessary consequence of the principles
of independence and equality of States. However, the rules of International Law are not
petrified; they are constantly developing and evolving. And because the activities of states
have multiplied, it has been necessary to distinguish them — between sovereign and
governmental acts (jure imperii) and private, commercial and proprietary acts (jure
gestionis). The result is that State immunity now extends only to acts jure imperiiThe
restrictive application of State immunity is now the rule in the United States, the United
kingdom and other states in Western Europe.
xxxxxxxxx

The restrictive application of State immunity is proper only when the proceedings arise out
of commercial transactions of the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to be sued only when it
enters into business contracts. It does not apply where the contract relates to the exercise
of its sovereign functions. In this case the projects are an integral part of the naval base
which is devoted to the defense of both the United States and the Philippines, indisputably
a function of the government of the highest order; they are not utilized for nor dedicated
to commercial or business purposes.
The other petitioners in the cases before us all aver they have acted in the discharge of
their official functions as officers or agents of the United States. However, this is a matter
of evidence. The charges against them may not be summarily dismissed on their mere
assertion that their acts are imputable to the United States of America, which has not
given its consent to be sued. In fact, the defendants are sought to be held answerable for
personal torts in which the United States itself is not involved. If found liable, they and
they alone must satisfy the judgment.
In Festejo v. Fernando, 23 a bureau director, acting without any authority whatsoever,
appropriated private land and converted it into public irrigation ditches. Sued for the value
of the lots invalidly taken by him, he moved to dismiss the complaint on the ground that
the suit was in effect against the Philippine government, which had not given its consent to
be sued. This Court sustained the denial of the motion and held that the doctrine of state
immunity was not applicable. The director was being sued in his private capacity for a
personal tort.
With these considerations in mind, we now proceed to resolve the cases at hand.
III
It is clear from a study of the records of G.R. No. 80018 that the individually-named
petitioners therein were acting in the exercise of their official functions when they
conducted the buy-bust operation against the complainant and thereafter testified against
him at his trial. The said petitioners were in fact connected with the Air Force Office of
Special Investigators and were charged precisely with the function of preventing the
distribution, possession and use of prohibited drugs and prosecuting those guilty of such
acts. It cannot for a moment be imagined that they were acting in their private or unofficial
capacity when they apprehended and later testified against the complainant. It follows that
for discharging their duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be sued.
As we observed in Sanders v. Veridiano: 24
PoliRev | PIL Assignment No. 1|46
Given the official character of the above-described letters, we have to conclude that the
petitioners were, legally speaking, being sued as officers of the United States government.
As they have acted on behalf of that government, and within the scope of their authority, it
is that government, and not the petitioners personally, that is responsible for their acts.
The private respondent invokes Article 2180 of the Civil Code which holds the government
liable if it acts through a special agent. The argument, it would seem, is premised on the
ground that since the officers are designated "special agents," the United States
government should be liable for their torts.
There seems to be a failure to distinguish between suability and liability and a
misconception that the two terms are synonymous. Suability depends on the consent of
the state to be sued, liability on the applicable law and the established facts. The
circumstance that a state is suable does not necessarily mean that it is liable; on the other
hand, it can never be held liable if it does not first consent to be sued. Liability is not
conceded by the mere fact that the state has allowed itself to be sued. When the state
does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it
can, that the defendant is liable.
The said article establishes a rule of liability, not suability. The government may be held
liable under this rule only if it first allows itself to be sued through any of the accepted
forms of consent.
Moreover, the agent performing his regular functions is not a special agent even if he is so
denominated, as in the case at bar. No less important, the said provision appears to
regulate only the relations of the local state with its inhabitants and, hence, applies only to
the Philippine government and not to foreign governments impleaded in our courts.
We reject the conclusion of the trial court that the answer filed by the special counsel of
the Office of the Sheriff Judge Advocate of Clark Air Base was a submission by the United
States government to its jurisdiction. As we noted in Republic v. Purisima, 25 express
waiver of immunity cannot be made by a mere counsel of the government but must be
effected through a duly-enacted statute. Neither does such answer come under the implied
forms of consent as earlier discussed.
But even as we are certain that the individual petitioners in G.R. No. 80018 were acting in
the discharge of their official functions, we hesitate to make the same conclusion in G.R.
No. 80258. The contradictory factual allegations in this case deserve in our view a closer
study of what actually happened to the plaintiffs. The record is too meager to indicate if
the defendants were really discharging their official duties or had actually exceeded their
authority when the incident in question occurred. Lacking this information, this Court
 PoliRev | PIL Assignment No. 1|47

cannot directly decide this case. The needed inquiry must first be made by the lower court The dismissal of the private respondent was decided upon only after a thorough
so it may assess and resolve the conflicting claims of the parties on the basis of the investigation where it was established beyond doubt that he had polluted the soup stock
evidence that has yet to be presented at the trial. Only after it shall have determined in with urine. The investigation, in fact, did not stop there. Despite the definitive finding of
what capacity the petitioners were acting at the time of the incident in question will this Genove's guilt, the case was still referred to the board of arbitrators provided for in the
Court determine, if still necessary, if the doctrine of state immunity is applicable. collective bargaining agreement. This board unanimously affirmed the findings of the
investigators and recommended Genove's dismissal. There was nothing arbitrary about the
In G.R. No. 79470, private respondent Genove was employed as a cook in the Main Club proceedings. The petitioners acted quite properly in terminating the private respondent's
located at the U.S. Air Force Recreation Center, also known as the Open Mess Complex, at employment for his unbelievably nauseating act. It is surprising that he should still have
John Hay Air Station. As manager of this complex, petitioner Lamachia is responsible for the temerity to file his complaint for damages after committing his utterly disgusting
eleven diversified activities generating an annual income of $2 million. Under his executive offense.
management are three service restaurants, a cafeteria, a bakery, a Class VI store, a coffee
and pantry shop, a main cashier cage, an administrative office, and a decentralized Concerning G.R. No. 76607, we also find that the barbershops subject of the concessions
warehouse which maintains a stock level of $200,000.00 per month in resale items. He granted by the United States government are commercial enterprises operated by private
supervises 167 employees, one of whom was Genove, with whom the United States person's. They are not agencies of the United States Armed Forces nor are their facilities
government has concluded a collective bargaining agreement. demandable as a matter of right by the American servicemen. These establishments
provide for the grooming needs of their customers and offer not only the basic haircut and
From these circumstances, the Court can assume that the restaurant services offered at shave (as required in most military organizations) but such other amenities as shampoo,
the John Hay Air Station partake of the nature of a business enterprise undertaken by the massage, manicure and other similar indulgences. And all for a fee. Interestingly, one of
United States government in its proprietary capacity. Such services are not extended to the concessionaires, private respondent Valencia, was even sent abroad to improve his
the American servicemen for free as a perquisite of membership in the Armed Forces of the tonsorial business, presumably for the benefit of his customers. No less significantly, if not
United States. Neither does it appear that they are exclusively offered to these more so, all the barbershop concessionaires are under the terms of their contracts,
servicemen; on the contrary, it is well known that they are available to the general public required to remit to the United States government fixed commissions in consideration of
as well, including the tourists in Baguio City, many of whom make it a point to visit John the exclusive concessions granted to them in their respective areas.
Hay for this reason. All persons availing themselves of this facility pay for the privilege like
all other customers as in ordinary restaurants. Although the prices are concededly This being the case, the petitioners cannot plead any immunity from the complaint filed by
reasonable and relatively low, such services are undoubtedly operated for profit, as a the private respondents in the court below. The contracts in question being decidedly
commercial and not a governmental activity. commercial, the conclusion reached in the United States of America v. Ruiz case cannot be
applied here.
The consequence of this finding is that the petitioners cannot invoke the doctrine of state
immunity to justify the dismissal of the damage suit against them by Genove. Such The Court would have directly resolved the claims against the defendants as we have done
defense will not prosper even if it be established that they were acting as agents of the in G.R. No. 79470, except for the paucity of the record in the case at hand. The evidence
United States when they investigated and later dismissed Genove. For that matter, not of the alleged irregularity in the grant of the barbershop concessions is not before us. This
even the United States government itself can claim such immunity. The reason is that by means that, as in G.R. No. 80258, the respondent court will have to receive that evidence
entering into the employment contract with Genove in the discharge of its proprietary first, so it can later determine on the basis thereof if the plaintiffs are entitled to the relief
functions, it impliedly divested itself of its sovereign immunity from suit. they seek. Accordingly, this case must also be remanded to the court below for further
proceedings.
But these considerations notwithstanding, we hold that the complaint against the
petitioners in the court below must still be dismissed. While suable, the petitioners are IV
nevertheless not liable. It is obvious that the claim for damages cannot be allowed on the
strength of the evidence before us, which we have carefully examined. There are a number of other cases now pending before us which also involve the question
of the immunity of the United States from the jurisdiction of the Philippines. This is cause
 PoliRev | PIL Assignment No. 1|48

for regret, indeed, as they mar the traditional friendship between two countries long allied
in the cause of democracy. It is hoped that the so-called "irritants" in their relations will be
resolved in a spirit of mutual accommodation and respect, without the inconvenience and
asperity of litigation and always with justice to both parties.

WHEREFORE, after considering all the above premises, the Court hereby renders judgment
as follows:

1. In G.R. No. 76607, the petition is DISMISSED and the respondent judge is directed to
proceed with the hearing and decision of Civil Case No. 4772. The temporary restraining
order dated December 11, 1986, is LIFTED.

2. In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829-R(298) is
DISMISSED.

3. In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115-C-87 is DISMISSED.
The temporary restraining order dated October 14, 1987, is made permanent.

4. In G.R. No. 80258, the petition is DISMISSED and the respondent court is directed to
proceed with the hearing and decision of Civil Case No. 4996. The temporary restraining
order dated October 27, 1987, is LIFTED.

All without any pronouncement as to costs.

SO ORDERED.

5. G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON.
JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON.
ALFREDO L. JUINIO, in his capacity as Minister Of Public Works, Transportation
and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of
Public Highways, respondents.
SYNOPSIS
Letter of Instruction No. 229 (1974) as amended by Letter of Instruction No. 479 (1976)
required every motor vehicle owner to procure and use one pair of a reflectorized
triangular early warning device whenever any vehicle is stalled or disabled or is parked for
thirty (30) minutes or more on any street, or highway, including expressways or limited
access roads. The implementing rules and regulations prepared by the respondent Land
Transportation Commissioner on December 10, 1976 were not enforced as President
Marcos, on January 25, 1977, ordered a six-month period of suspension insofar as the
installation of early warning device (EWD) as a pre-registration requirement for motor
vehicles was concerned. Letter of Instruction No. 716, issued on June 30, 1978 lifted such
suspension and in pursuance thereof, the rules and regulations prepared by respondent
Commission were approved for immediate implementation by respondent Minister of Public
Works and Communication.
Petitioner came to court alleging that Letter of Instruction 229, as amended, clearly
violates the provisions of the New Constitution on due process, equal protection and
delegation of police power. That it is oppressive, unreasonable, arbitrary, confiscatory and
contrary to the precepts of our compassionate New Society. The respondents’ Answer
demonstrated that the assailed Letter of Instruction was a valid exercise of the police
power; that the implementing rules and regulations of respondent Land Transportation
Commissioner do not constitute unlawful delegation of legislative power and that the
hazards posed by such obstructions to traffic have been recognized by international bodies
concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals of
which Philippines was a signatory and which was duly ratified and the United Nations
Organization.
The Court dismissed the petition for prohibition ruling that the Letter of Instruction in
question was issued in the exercise of the State’s police power intended to promote public
safety; that there has been no undue delegation of legislative power as a standard has
PoliRev | PIL Assignment No. 1|49
been set; and that the country cannot repudiate its commitment to international bodies
and the accepted principles of international law.
SYLLABUS
1. CONSTITUTIONAL LAW; POLICE POWER OF THE STATE; ENACTMENT OF LEGISLATION
TO PROMOTE GENERAL WELFARE; JURISPRUDENCE. — The broad and expansive scope of
the police power, which was originally identified by Chief Justice Taney of the American
Supreme Court in an 1847 decision, as "nothing more or less than the powers of
government inherent in every sovereignty" was stressed in the case of Edu v. Ericta, (L-
32096, Oct. 24, 1970), thus: "Justice Laurel, in the first leading decision after the
Constitution came into force, Calalang v. Williams, (70 Phil. 720) [1940] identified police
power with the state authority to enact legislation that may interfere with personal liberty
or property in order to promote the general welfare. Persons and property could thus ‘be
subjected to all kinds of restraints and burdens in order to secure the general comfort,
health and prosperity of the state.’ Shortly after independence in 1948, Primicias v. Fugoso
(80 Phil. 71) reiterated the doctrine, such a competence being referred to as ‘the power to
prescribe regulations to promote the health, morals, peace, education, good order or
safety, and general welfare of the people.’ The concept was set forth in negative terms by
Justice Malcolm in a pre-Commonwealth decision as ‘that inherent and plenary power in
the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of
society.’ In the sense it could be hardly distinguishable as noted in Morfe v. Mutuc (L-
20387 Jan. 31, 1969) with the totality of legislative power. It is in the above sense the
greatest and most powerful attribute of government. It is, to quote Justice Malcolm, ‘the
most essential, insistent, and at least illimitable powers,’ extending as Justice Holmes,
aptly pointed out ‘to all the great public needs.’ Its scope, over-expanding to meet the
exigencies of the times, even to anticipate the future where it could be done, provides
enough room for an efficient and flexible response to conditions and circumstances thus
assuring the greatest benefits. In the language of Justice Cardozo: ‘Needs that were
narrow or parochial in the past may be interwoven in the present with the well-being of the
nation. What is critical or urgent changes with the time.’ The police power is thus a
dynamic agency, suitably vague and far from precisely defined, rooted in the conception
that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an individual citizen or a
group of citizens to obstruct unreasonably the enactments of such salutary measures
calculated to insure communal peace, safety, good order, and welfare.’"
2. ID.; ID.; ID.; LETTER OF INSTRUCTION NO. 229; INTENDED TO PROMOTE PUBLIC
SAFETY. — Letter of Instruction 229 is a police measure clearly intended to promote public
safety. It would be rare occurrence for the Court to invalidate a legislative or executive act
of that character. The latest decision in point, Edu v. Ericta, sustained the validity of the

Reflector Law, R.A. No. 5715 (1969), an enactment conceived with the same end in view.
Calalang v. Williams found nothing objectionable in a statute, the purpose of which was:
"To promote safe transit upon, and avoid obstruction on roads and streets designated as
national roads . . . ."cralaw virtua1aw library
3. ID.; ID.; ID.; ID.; ISSUED AFTER CAREFUL STUDY BY THE EXECUTIVE DEPARTMENT. —
The issuance of Letter of Instruction No. 229 is encased in the armor of prior, careful study
by the Executive Department. The President had in his possession the necessary statistical
information and data at the time he issued said letter of instruction and such factual
foundation cannot be defeated by petitioner’s naked assertion, not backed up by
demonstrable data on record, that early warning devices are not too vital to the prevention
of nighttime vehicular accidents. To set it aside for alleged repugnancy to the due process
clause is to give sanction to conjectural claims that exceeded even the broadest
permissible limits of a pleader’s well-known penchant for exaggeration.
4. ID.; ID.; ID.; ID.; EARLY WARNING DEVICE REQUIREMENT NOT OPPRESSIVE AND
CONFISCATORY. — There is nothing in the questioned Letter of Instruction No. 229, as
amended, or in the implementing rules and regulations in Administrative Order No. 1
issued by the Land Transportation Commission, which requires or compels motor vehicle
owners to purchase the early warning device prescribed thereby. All that is required is for
motor vehicle owners concerned to equip their motor vehicles with a pair of this early
warning device in question, procuring or obtaining the same from whatever source. With a
little of industry and practical ingenuity, motor vehicle owners can even personally make or
produce this early warning device so long as the same substantially conforms with the
specifications laid down in said letter of instruction and administrative order. Accordingly,
the early warning device requirement can neither be oppressive, onerous, immoral, nor
confiscatory, much less does it make manufacturers and dealers of said devices instant
millionaries at the expense of car owners as petitioner so sweepingly concludes.
5. ID.; ID.; ID.; ID.; ATTACK ON THE WISDOM THEREOF CANNOT BE SUSTAINED. — The
attack on the validity of the challenged provision insofar as there may be objections, even
if valid and cogent, on its wisdom cannot be sustained. That approach is distinguished by
its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel, ‘does
not pass upon questions of wisdom, justice or expediency of legislation.’ As expressed by
Justice Tuason:’ It is not the province of the courts to supervise legislation and keep it
within the bounds of propriety and common sense. That is primarily and exclusively a
legislative concern.’ There can be no possible objection then to the observation of Justice
Montemayor:’ As long as laws do not violate any constitutional provision, the Courts
merely interpret and apply them regardless of whether or not they are wise or salutary.’
For they, according to Justice Labrador, ‘are not supposed to override legitimate policy and
. . . never inquire into the wisdom of the law.’ It is thus settled, to paraphrase Chief Justice
PoliRev | PIL Assignment No. 1|50
Concepcion in Gonzales v. Commission on Elections, that only congressional power or
competence, not the wisdom of the action taken, may be the basis for declaring a statute
invalid. This is as it ought to be. The principle of separation of powers has in the main
wisely allocated the respective authority of each department and confined its jurisdiction to
such a sphere. There would then be intrusion not allowable under the Constitution if on a
matter left to the discretion of a coordinate branch, the judiciary would substitute its own.
If there be adherence to the rule of law, as there ought to be, the last offender should be
courts of justice, to which rightly litigants submit their controversy precisely to maintain
unimpaired the supremacy of legal norms and prescriptions. . . ."cralaw virtua1aw library
6. ID.; ID.; ID.; NO INFRINGEMENT OF THE PRINCIPLE OF NON-DELEGATION OF
LEGISLATIVE POWER. — The alleged infringement of the principle of non-delegation of
legislative power is without any support in well-settled legal doctrines. An excerpt from the
aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of
unlawful delegation, there must be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays down fundamental policy.
Otherwise, the charge of complete abdication may be hard to repel. A standard thus
defines legislative policy, marks its limits, maps out its boundaries and specifies the public
agency to apply it. It indicates the circumstances under which the legislative command is
to be effected. It is the criterion by which legislative purpose may be carried out.
Thereafter, the executive or administrative office designated may in pursuance of the
above guidelines promulgate supplemental rules and regulations. The standard may be
either express or implied. If the former, the non-delegation is easily met. The standard
though does not have to be spelled out specifically. It could be implied from the policy and
purpose of the act considered as a whole. . . ."cralaw virtua1aw library
7. ID.; ID.; ID.; ID.; STATE RECOGNITION OF INTERNATIONAL AGREEMENTS. — Where
the two whereas clauses of the assailed Letter of Instruction read:" (Whereas), the hazards
posed by such obstructions to traffic have been recognized by international bodies
concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and
the United Nations Organization (U.N.); (Whereas), the said Vienna Convention, which was
ratified by the Philippine Government under P.D. No. 207, recommended the enactment of
local legislation for the installation of road safety signs and devices; . . .", it cannot be
disputed then that this Declaration of Principle found in the Constitution possesses
relevance: "The Philippines . . . adopts the generally accepted principles of international
law as part of the law of the land, . . ." The 1968 Vienna Convention on Road Signs and
Signals is impressed with such a character. It is not for this country to repudiate a
commitment to which it had pledged its word. The concept of Pactasuntservanda stands in
the way of such an attitude, which is, moreover, at war with the principle of international
morality.
 PoliRev | PIL Assignment No. 1|51

TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library by respondent Edu be considered as amounting to an exercise of legislative power.
Accordingly, the petition must be dismissed.
1. STATUTES; LETTER OF INSTRUCTION NO. 229; EARLY WARNING DEVICE
REQUIREMENT; OPPRESSIVE, ARBITRARY AND DISCRIMINATORY. — It is oppressive, The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos,
arbitrary and discriminatory to require owners of motor vehicles with built-in and more issued on December 2, 1974, reads in full: "[Whereas], statistics show that one of the
effective and efficient early warning devices (E.W.D.’s) such as" (a) blinking lights in the major causes of fatal or serious accidents in land transportation is the presence of
fore and aft of said motor vehicles, (b) battery-powered blinking lights inside motor disabled, stalled or parked motor vehicles along streets or highways without any
vehicles, (c) built-in reflectorized tapes on front and rear bumpers of motor vehicles . . . ." appropriate early warning device to signal approaching motorists of their presence;
to purchase the E.W.D. specified in the challenged order, whose effectivity and utility have [Whereas], the hazards posed by such obstructions to traffic have been recognized by
yet to be demonstrated. international bodies concerned with traffic safety, the 1968 Vienna Convention on Road
Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna
2. ID.; ID.; ID.; NO PUBLIC NECESSITY THEREFOR. — The public necessity for the Convention which was ratified by the Philippine Government under P.D. No. 207,
challenged order has yet to be shown. No valid refutation has been made of petitioner’s recommended the enactment of local legislation for the installation of road safety signs and
assertion that the "E.W.D.’s" are not too vital to the prevention of nighttime vehicular devices; [Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the
accidents. Statistics show that the 26,000 motor vehicle accidents that occurred in 1976, interest of safety on all streets and highways, including expressways or limited access
only 390 or 1.5 percent involved rear-end collisions, "as to require the purchase and roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at
installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country. all times in their motor vehicles at least one (1) pair of early warning device consisting of
There is no imperative need for imposing such a blanket requirement on all vehicles. The triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the
respondents have not shown that they have availed of the powers and prerogatives vested base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is
in their offices such as ridding the country of dilapitated trucks and vehicles which are the parked for thirty (30) minutes or more on any street or highway, including expressways or
main cause of the deplorable highway accidents due to stalled vehicles, establishing an limited access roads, the owner, user or driver thereof shall cause the warning device
honest and fool-proof system of examination and licensing of motor vehicle drivers so as to mentioned herein to be installed at least four meters away to the front and rear of the
ban the reckless and irresponsible and a sustained education campaign to install safe motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall
driving habits and attitudes that can be carried out for much less than the P50 million cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared
burden that would be imposed by the challenged order. and issued to registered owners of motor vehicles, except motorcycles and trailers,
charging for each piece not more than 15 % of the acquisition cost. He shall also
FERNANDO, J.: promulgate such rules and regulations as are appropriate to effectively implement this
order. 4. All hereby concerned shall closely coordinate and take such measures as are
The validity of a letter of Instruction 1 providing for an early seaming device for motor necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November
vehicles is assailed in this prohibition proceeding as being violative of the constitutional 15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of
guarantee of due process and, insofar as the rules and regulations for its implementation Letter of Instruction No. 229 is hereby amended to read as follows: 3. The Land
are concerned, for transgressing the fundamental principle of non- delegation of legislative transportation Commissioner shall require every motor vehicle owner to procure from any
power. The Letter of Instruction is stigmatized by petitioner who is possessed of the and present at the registration of his vehicle, one pair of a reflectorized early warning
requisite standing, as being arbitrary and oppressive. A temporary restraining order as device, as d bed of any brand or make chosen by mid motor vehicle . The Land
issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce Transportation Commissioner shall also promulgate such rule and regulations as are
Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, appropriate to effectively implement this order.'" 4 There was issued accordingly, by
Transportation and Communications; and Baltazar Aquino, Minister of Public Highways; respondent Edu, the implementing rules and regulations on December 10, 1976. 5 They
were to answer. That they did in a pleading submitted by Solicitor General Estelito P. were not enforced as President Marcos on January 25, 1977, ordered a six-month period of
Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear that the suspension insofar as the installation of early warning device as a pre-registration
imputation of a constitutional infirmity is devoid of justification The Letter of Instruction on requirement for motor vehicle was concerned. 6 Then on June 30, 1978, another Letter of
is a valid police power measure. Nor could the implementing rules and regulations issued Instruction 7 the lifting of such suspension and directed the immediate implementation of

Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that
respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter
of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction
No. 229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning
Devices (EWD) on motor vehicle, the following rules and regulations are hereby issued: 1.
LTC Administrative Order No. 1, dated December 10, 1976; shall now be implemented
provided that the device may come from whatever source and that it shall have
substantially complied with the EWD specifications contained in Section 2 of said
administrative order; 2. In order to insure that every motor vehicle , except motorcycles, is
equipped with the device, a pair of serially numbered stickers, to be issued free of charge
by this Commission, shall be attached to each EWD. The EWD.serial number shall be
indicated on the registration certificate and official receipt of payment of current
registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in
conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was
for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works,
transportation, and Communications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model
13035, already properly equipped when it came out from the assembly lines with blinking
lights fore and aft, which could very well serve as an early warning device in case of the
emergencies mentioned in Letter of Instructions No. 229, as amended, as well as the
implementing rules and regulations in Administrative Order No. 1 issued by the land
transportation Commission," 11 alleged that said Letter of Instruction No. 229, as amended,
"clearly violates the provisions and delegation of police power, [sic] * * *: " For him they
are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to
the precepts of our compassionate New Society." 12 He contended that they are "infected
with arbitrariness because it is harsh, cruel and unconscionable to the motoring
public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will
make manufacturers and dealers instant millionaires at the expense of car owners who are
compelled to buy a set of the so-called early warning device at the rate of P 56.00 to
P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a
compassionate New Society [as being] compulsory and confiscatory on the part of the
motorists who could very well provide a practical alternative road safety device, or a better
substitute to the specified set of EWD's." 15 He therefore prayed for a judgment both the
assailed Letters of Instructions and Memorandum Circular void and unconstitutional and for
a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112
(Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) — Considering the allegations
contained, the issues raised and the arguments adduced in the petition for prohibition with
writ of p prohibitory and/or mandatory injunction, the Court Resolved to (require) the
PoliRev | PIL Assignment No. 1|52
respondents to file an answer thereto within ton (10) days from notice and not to move to
dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order]
effective as of this date and continuing until otherwise ordered by this Court.16
Two motions for extension were filed by the Office of the Solicitor General and granted.
Then on November 15, 1978, he Answer for respondents was submitted. After admitting
the factual allegations and stating that they lacked knowledge or information sufficient to
form a belief as to petitioner owning a Volkswagen Beetle car," they "specifically deny the
allegations and stating they lacked knowledge or information sufficient to form a belief as
to petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the allegations in
paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that
Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as
well as Land transportation Commission Administrative Order No. 1 and its Memorandum
Circular No. 32 violates the constitutional provisions on due process of law, equal
protection of law and undue delegation of police power, and that the same are likewise
oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal
the truth being that said allegations are without legal and factual basis and for the reasons
alleged in the Special and Affirmative Defenses of this Answer."18 Unlike petitioner who
contented himself with a rhetorical recital of his litany of grievances and merely invoked
the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the
assailed Letter of Instruction was a valid exercise of the police power and implementing
rules and regulations of respondent Edu not susceptible to the charge that there was
unlawful delegation of legislative power, there was in the portion captioned Special and
Affirmative Defenses, a citation of what respondents believed to be the authoritative
decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v.
Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna
Conventions of the United Nations on road traffic, road signs, and signals, of which the
Philippines was a signatory and which was duly ratified. 22 Solicitor General Mendoza took
pains to refute in detail, in language calm and dispassionate, the vigorous, at times
intemperate, accusation of petitioner that the assailed Letter of Instruction and the
implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat,
its highly-persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being clearly
joined. As noted at the outset, it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power. That
is conceded by petitioner and is the main reliance of respondents. It is the submission of
the former, however, that while embraced in such a category, it has offended against the
due process and equal protection safeguards of the Constitution, although the latter point
was mentioned only in passing. The broad and expansive scope of the police power which

was originally Identified by Chief Justice Taney of the American Supreme Court in an 1847
decision as "nothing more or less than the powers of government inherent in every
sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice
Laurel, in the first leading decision after the Constitution came into force, Calalang v.
Williams, Identified police power with state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare. Persons and
property could thus 'be subjected to all kinds of restraints and burdens in order to we the
general comfort, health and prosperity of the state.' Shortly after independence in
1948, Primicias v. Fugoso reiterated the doctrine, such a competence being referred to as
'the power to prescribe regulations to promote the health, morals, peace, education, good
order or safety, and general welfare of the people. The concept was set forth in negative
terms by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary
power in the State which enables it to prohibit all things hurtful to the comfort, safety and
welfare of society. In that sense it could be hardly distinguishable as noted by this Court in
Morfe v. Mutuc with the totality of legislative power. It is in the above sense the greatest
and most powerful at. tribute of government. It is, to quote Justice Malcolm anew, 'the
most essential, insistent, and at least table powers, I extending as Justice Holmes aptly
pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the
exigencies of the times, even to anticipate the future where it could be done, provides
enough room for an efficient and flexible response to conditions and circumstances thus
assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were
narrow or parochial in the past may be interwoven in the present with the well-being of the
nation. What is critical or urgent changes with the time.' The police power is thus a
dynamic agency, suitably vague and far from precisely defined, rooted in the conception
that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an individual citizen or a
group of citizens to obstruct unreasonably the enactment of such salutary measures
calculated to communal peace, safety, good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that
the particular police power measure challenged was clearly intended to promote public
safety. It would be a rare occurrence indeed for this Court to invalidate a legislative or
executive act of that character. None has been called to our attention, an indication of its
being non-existent. The latest decision in point, Edu v. Ericta, sustained the validity of the
Reflector Law, 25 an enactment conceived with the same end in view. Calalang v.
Williams found nothing objectionable in a statute, the purpose of which was: "To promote
safe transit upon, and. avoid obstruction on roads and streets designated as national roads
* * *. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the
1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was
likewise prompted by the imperative demands of public safety.
PoliRev | PIL Assignment No. 1|53
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the
implementing rules and regulations becomes even more apparent considering his failure to
lay the necessary factual foundation to rebut the presumption of validity. So it was held
in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 The
rationale was clearly set forth in an excerpt from a decision of Justice Branders of the
American Supreme Court, quoted in the opinion: "The statute here questioned deals with a
subject clearly within the scope of the police power. We are asked to declare it void on the
ground that the specific method of regulation prescribed is unreasonable and hence
deprives the plaintiff of due process of law. As underlying questions of fact may condition
the constitutionality of legislation of this character, the presumption of constitutionality
must prevail in the absence of some factual foundation of record in overthrowing the
statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebutted
presumption of validity. As was pointed out in his Answer "The President certainly had in
his possession the necessary statistical information and data at the time he issued said
letter of instructions, and such factual foundation cannot be defeated by petitioner's naked
assertion that early warning devices 'are not too vital to the prevention of nighttime
vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000
motor vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition).
Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by
this Honorable Court: Further: "It admits of no doubt therefore that there being a
presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the
statute or ordinance is void on its face, which is not the case here"' * * *. But even as g
the verity of petitioner's statistics, is that not reason enough to require the installation of
early warning devices to prevent another 390 rear-end collisions that could mean the
death of 390 or more Filipinos and the deaths that could likewise result from head-on or
frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of
such Letter of Instruction is encased in the armor of prior, careful study by the Executive
Department. To set it aside for alleged repugnancy to the due process clause is to give
sanction to conjectural claims that exceeded even the broadest permissible limits of a
pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of
Instruction was exposed in the Answer of the Solicitor General thus: "Such early warning
device requirement is not an expensive redundancy, nor oppressive, for car owners whose
cars are already equipped with 1) blinking lights in the fore and aft of said motor vehicles,'
2) "battery-powered blinking lights inside motor vehicles," 3) "built-in reflectorized tapes
on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps
(the Kinke) * * * because: Being universal among the signatory countries to the said 1968
Vienna Conventions, and visible even under adverse conditions at a distance of at least

400 meters, any motorist from this country or from any part of the world, who sees a
reflectorized rectangular early seaming device installed on the roads, highways or
expressways, will conclude, without thinking, that somewhere along the travelled portion
of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled
or disabled which obstructs or endangers passing traffic. On the other hand, a motorist
who sees any of the aforementioned other built in warning devices or the petroleum lamps
will not immediately get adequate advance warning because he will still think what that
blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an
ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase,
rather than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the
Answer of the Solicitor General "There is nothing in the questioned Letter of Instruction No.
229, as amended, or in Administrative Order No. 1, which requires or compels motor
vehicle owners to purchase the early warning device prescribed thereby. All that is required
is for motor vehicle owners concerned like petitioner, to equip their motor vehicles with a
pair of this early warning device in question, procuring or obtaining the same from
whatever source. In fact, with a little of industry and practical ingenuity, motor vehicle
owners can even personally make or produce this early warning device so long as the same
substantially conforms with the specifications laid down in said letter of instruction and
administrative order. Accordingly the early warning device requirement can neither be
oppressive, onerous, immoral, nor confiscatory, much less does it make manufacturers and
dealers of said devices 'instant millionaires at the expense of car owners' as petitioner so
sweepingly concludes * * *. Petitioner's fear that with the early warning device
requirement 'a more subtle racket may be committed by those called upon to enforce it * *
* is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said
requirement in an unreasonable manner or to an unreasonable degree, does not render the
same illegal or immoral where, as in the instant case, the challenged Letter of Instruction
No. 229 and implementing order disclose none of the constitutional defects alleged against
it.32
7 It does appear clearly that petitioner's objection to this Letter of Instruction is not
premised on lack of power, the justification for a finding of unconstitutionality, but on the
pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put
it at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It
bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon
questions of wisdom justice or expediency of legislation.' As expressed by Justice Tuason:
'It is not the province of the courts to supervise legislation and keep it within the bounds of
propriety and common sense. That is primarily and exclusively a legislative concern.' There
can be no possible objection then to the observation of Justice Montemayor. 'As long as
laws do not violate any Constitutional provision, the Courts merely interpret and apply
PoliRev | PIL Assignment No. 1|54
them regardless of whether or not they are wise or salutary. For they, according to Justice
Labrador, 'are not supposed to override legitimate policy and * * * never inquire into the
wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v.
Commission on Elections, that only congressional power or competence, not the wisdom of
the action taken, may be the basis for declaring a statute invalid. This is as it ought to be.
The principle of separation of powers has in the main wisely allocated the respective
authority of each department and confined its jurisdiction to such a sphere. There would
then be intrusion not allowable under the Constitution if on a matter left to the discretion
of a coordinate branch, the judiciary would substitute its own. If there be adherence to the
rule of law, as there ought to be, the last offender should be courts of justice, to which
rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of
legal norms and prescriptions. The attack on the validity of the challenged provision
likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot
be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of legislative
power is equally without any support well-settled legal doctrines. Had petitioner taken the
trouble to acquaint himself with authoritative pronouncements from this Tribunal, he would
not have the temerity to make such an assertion. An exempt from the aforecited decision
of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there
must be a standard, which implies at the very least that the legislature itself determines
matters of principle and lays down fundamental policy. Otherwise, the charge of complete
abdication may be hard to repel A standard thus defines legislative policy, marks its maps
out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. It is the criterion by
which legislative purpose may be carried out. Thereafter, the executive or administrative
office designated may in pursuance of the above guidelines promulgate supplemental rules
and regulations. The standard may be either express or implied. If the former, the non-
delegation objection is easily met. The standard though does not have to be spelled out
specifically. It could be implied from the policy and purpose of the act considered as a
whole. In the Reflector Law clearly, the legislative objective is public safety. What is sought
to be attained as in Calalang v. Williams is "safe transit upon the roads.' This is to adhere
to the recognition given expression by Justice Laurel in a decision announced not too long
after the Constitution came into force and effect that the principle of non-delegation "has
been made to adapt itself to the complexities of modern governments, giving rise to the
adoption, within certain limits, of the principle of "subordinate legislation" not only in the
United States and England but in practically all modern governments.' He continued:
'Accordingly, with the growing complexity of modern life, the multiplication of the subjects
of governmental regulation, and the increased difficulty of administering the laws, there is
a constantly growing tendency toward the delegation of greater powers by the legislature
and toward the approval of the practice by the courts.' Consistency with the conceptual
 PoliRev | PIL Assignment No. 1|55

approach requires the reminder that what is delegated is authority non-legislative in

character, the completeness of the statute when it leaves the hands of Congress being
assumed." 34

9. The conclusion reached by this Court that this petition must be dismissed is reinforced
by this consideration. The petition itself quoted these two whereas clauses of the assailed
Letter of Instruction: "[Whereas], the hazards posed by such obstructions to traffic have
been recognized by international bodies concerned with traffic safety, the 1968 Vienna
Convention on Road Signs and Signals and the United Nations Organization (U.N.);
[Whereas], the said Vionna Convention, which was ratified by the Philippine Government
under P.D. No. 207, recommended the enactment of local legislation for the installation of
road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of
Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the
generally accepted principles of international law as part of the law of the land * *
*." 36 The 1968 Vienna Convention on Road Signs and Signals is impressed with such a
character. It is not for this country to repudiate a commitment to which it had pledged its
word. The concept of Pactasuntservanda stands in the way of such an attitude, which is,
moreover, at war with the principle of international morality.

10. That is about all that needs be said. The rather court reference to equal protection did
not even elicit any attempt on the Part of Petitioner to substantiate in a manner clear,
positive, and categorical why such a casual observation should be taken seriously. In no
case is there a more appropriate occasion for insistence on what was referred to as "the
general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the
constitutionality of a law wig not be considered unless the point is specially pleaded,
insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic formula at
the mere invocation of which a party to a lawsuit can rightfully expect that success will
crown his efforts. The law is anything but that.

WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is
immediately executory. No costs.

6. G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE
M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO
E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their
capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice,
Immigration Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While ostensibly only legal
issues are involved, the Court's decision in this case would undeniably have a profound
effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via
the non-violent "people power" revolution and forced into exile. In his stead, Corazon C.
Aquino was declared President of the Republic under a revolutionary government. Her
ascension to and consilidation of power have not been unchallenged. The failed Manila
Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station
Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the
unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with
mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin,
January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even
from afar and to the fanaticism and blind loyalty of their followers in the country. The
ratification of the 1987 Constitution enshrined the victory of "people power" and also
clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not,
however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio
Honasan, one of the major players in the February Revolution, led a failed coup that left
scores of people, both combatants and civilians, dead. There were several other armed
sorties of lesser significance, but the message they conveyed was the same — a split in the
ranks of the military establishment that thraetened civilian supremacy over military and
brought to the fore the realization that civilian government could be at the mercy of a
fractious military.
PoliRev | PIL Assignment No. 1|56
But the armed threats to the Government were not only found in misguided elements and
among rabid followers of Mr. Marcos. There are also the communist insurgency and the
seccessionist movement in Mindanao which gained ground during the rule of Mr. Marcos, to
the extent that the communists have set up a parallel government of their own on the
areas they effectively control while the separatist are virtually free to move about in armed
bands. There has been no let up on this groups' determination to wrest power from the
govermnent. Not only through resort to arms but also to through the use of propaganda
have they been successful in dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated.
The efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet
to show concrete results in alleviating the poverty of the masses, while the recovery of the
ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die.
But Mrs. Aquino, considering the dire consequences to the nation of his return at a time
when the stability of government is threatened from various directions and the economy is
just beginning to rise and move forward, has stood firmly on the decision to bar the return
of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out
of office and into exile after causing twenty years of political, economic and social havoc in
the country and who within the short space of three years seeks to return, is in a class by
itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to
issue travel documents to Mr. Marcos and the immediate members of his family and to
enjoin the implementation of the President's decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of
the following issues:
1. Does the President have the power to bar the return of former President Marcos and
family to the Philippines?

a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and his
family from returning to the Philippines, in the interest of "national security, public safety
or public health
a. Has the President made a finding that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public safety or
public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the President's decision,
including the grounds upon which it was based, been made known to petitioners so that
they may controvert the same?
c. Is the President's determination that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public safety, or
public health a political question?
d. Assuming that the Court may inquire as to whether the return of former President
Marcos and his family is a clear and present danger to national security, public safety, or
public health, have respondents established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar the
return of former President Marcos and his family, acted and would be acting without
jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in performing
any act which would effectively bar the return of former President Marcos and his family to
the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return
to the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
PoliRev | PIL Assignment No. 1|57
xxxxxxxxx
Section 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public health,
as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode
of the Marcoses because only a court may do so "within the limits prescribed by law." Nor
may the President impair their right to travel because no law has authorized her to do so.
They advance the view that before the right to travel may be impaired by any authority or
agency of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his
family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within the
borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his
country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified
by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the
right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which
are provided by law, are necessary to protect national security, public order (order public),
public health or morals or the rights and freedoms of others, and are consistent with the
other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
 PoliRev | PIL Assignment No. 1|58

On the other hand, the respondents' principal argument is that the issue in this case all citizens may be required, under conditions provided by law, to render personal, military,
involves a political question which is non-justiciable. According to the Solicitor General: or civil service.

As petitioners couch it, the question involved is simply whether or not petitioners Section 5. The maintenance of peace and order, the protection of life, liberty, and
Ferdinand E. Marcos and his family have the right to travel and liberty of abode. Petitioners property, and the promotion of the general welfare are essential for the enjoyment by all
invoke these constitutional rights in vacuo without reference to attendant circumstances. the people of the blessings of democracy.

Respondents submit that in its proper formulation, the issue is whether or not petitioners Respondents also point out that the decision to ban Mr. Marcos and family from returning
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here to the Philippines for reasons of national security and public safety has international
at this time in the face of the determination by the President that such return and precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua,
residence will endanger national security and public safety. Jorge Ubico of Guatemala, Fulgenciobatista of Cuba, King Farouk of Egypt, Maximiliano
Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among
It may be conceded that as formulated by petitioners, the question is not a political the deposed dictators whose return to their homelands was prevented by their
question as it involves merely a determination of what the law provides on the matter and governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in
application thereof to petitioners Ferdinand E. Marcos and family. But when the question is Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
whether the two rights claimed by petitioners Ferdinand E. Marcos and family impinge on
or collide with the more primordial and transcendental right of the State to security and The parties are in agreement that the underlying issue is one of the scope of presidential
safety of its nationals, the question becomes political and this Honorable Court can not power and its limits. We, however, view this issue in a different light. Although we give due
consider it. weight to the parties' formulation of the issues, we are not bound by its narrow confines in
arriving at a solution to the controversy.
There are thus gradations to the question, to wit:
At the outset, we must state that it would not do to view the case within the confines of
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines the right to travel and the import of the decisions of the U.S. Supreme Court in the leading
and reestablish their residence here? This is clearly a justiciable question which this cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v.
Honorable Court can decide. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and
recognized exceptions to the exercise thereof, respectively.
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines
and reestablish their residence here even if their return and residence here will endanger It must be emphasized that the individual right involved is not the right to travel from the
national security and public safety? this is still a justiciable question which this Honorable Philippines to other countries or within the Philippines. These are what the right to travel
Court can decide. would normally connote. Essentially, the right involved is the right to return to one's
country, a totally distinct right under international law, independent from although related
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and to the right to travel. Thus, the Universal Declaration of Humans Rights and the
family shall return to the Philippines and establish their residence here? This is now a International Covenant on Civil and Political Rights treat the right to freedom of movement
political question which this Honorable Court can not decide for it falls within the exclusive and abode within the territory of a state, the right to leave a country, and the right to
authority and competence of the President of the Philippines. [Memorandum for enter one's country as separate and distinct rights. The Declaration speaks of the "right to
Respondents, pp. 9-11; Rollo, pp. 297-299.] freedom of movement and residence within the borders of each state" [Art. 13(l)]
separately from the "right to leave any country, including his own, and to return to his
Respondents argue for the primacy of the right of the State to national security over country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of
individual rights. In support thereof, they cite Article II of the Constitution, to wit: movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to
leave any country, including his own." [Art. 12(2)] which rights may be restricted by such
Section 4. The prime duty of the Government is to serve and protect the people. The laws as "are necessary to protect national security, public order, public health or morals or
Government may call upon the people to defend the State and, in the fulfillment thereof,

enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the right to return to one's
country in the same context as those pertaining to the liberty of abode and the right to
travel.
The right to return to one's country is not among the rights specifically guaranteed in the
Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our
well-considered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land [Art.
II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel
and enjoys a different protection under the International Covenant of Civil and Political
Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for
the purpose of effectively exercising the right to travel are not determinative of this case
and are only tangentially material insofar as they relate to a conflict between executive
action and the exercise of a protected right. The issue before the Court is novel and
without precedent in Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there
can be limitations on the right to travel in the absence of legislation to that effect is
rendered unnecessary. An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall first resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article
VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined that the return
of the Marcose's to the Philippines poses a serious threat to national interest and welfare
and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly provides
that "[the legislative power shall be vested in the Congress of the Philippines" Art VI, Sec.
PoliRev | PIL Assignment No. 1|59
11, "[t]he executive power shall bevested in the President of the Philippines" [Art. VII, Sec.
11, and "[te judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a
separation of powers by actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject only to limitations provided
in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)]
pointed out "a grant of the legislative power means a grant of all legislative power; and a
grant of the judicial power means a grant of all the judicial power which may be exercised
under the government." [At 631-632.1 If this can be said of the legislative power which is
exercised by two chambers with a combined membership of more than two hundred
members and of the judicial power which is vested in a hierarchy of courts, it can equally
be said of the executive power which is vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in
the President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is
meant by executive power" although in the same article it touches on the exercise of
certain powers by the President, i.e., the power of control over all executive departments,
bureaus and offices, the power to execute the laws, the appointing power, the powers
under the commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into treaties or international
agreements, the power to submit the budget to Congress, and the power to address
Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the
framers of the Constitution intend that the President shall exercise those specific powers
and no other? Are these se enumerated powers the breadth and scope of "executive
power"? Petitioners advance the view that the President's powers are limited to those
specifically enumerated in the 1987 Constitution. Thus, they assert: "The President has
enumerated powers, and what is not enumerated is impliedly denied to her. Inclusion
uniusestexclusioalterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument
brings to mind the institution of the U.S. Presidency after which ours is legally
patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the
same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same
token, to those who think that constitution makers ought to leave considerable leeway for
the future play of political forces, it should be a vision realized.

We encounter this characteristic of Article 11 in its opening words: "The executive power
shall be vested in a President of the United States of America." . . .. [The President: Office
and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons
who held the office from Washington to the early 1900's, and the swing from the
presidency by commission to Lincoln's dictatorship, he concluded that "what the presidency
is at any particular moment depends in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of course, an
agency of government subject to unvarying demands and duties no remained, of cas
President. But, more than most agencies of government, it changed shape, intensity and
ethos according to the man in charge. Each President's distinctive temperament and
character, his values, standards, style, his habits, expectations, Idiosyncrasies,
compulsions, phobias recast the WhiteHouse and pervaded the entire government. The
executive branch, said Clark Clifford, was a chameleon, taking its color from the character
and personality of the President. The thrust of the office, its impact on the constitutional
order, therefore altered from President to President. Above all, the way each President
understood it as his personal obligation to inform and involve the Congress, to earn and
hold the confidence of the electorate and to render an accounting to the nation and
posterity determined whether he strengthened or weakened the constitutional order. [At
212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but,
rather, that the consideration of tradition and the development of presidential power under
the different constitutions are essential for a complete understanding of the extent of and
limitations to the President's powers under the 1987 Constitution. The 1935 Constitution
created a strong President with explicitly broader powers than the U.S. President. The
1973 Constitution attempted to modify the system of government into the parliamentary
type, with the President as a mere figurehead, but through numerous amendments, the
President became even more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the presidential system of
government and restored the separation of legislative, executive and judicial powers by
their actual distribution among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce
the laws, for the President is head of state as well as head of government and whatever
powers inhere in such positions pertain to the office unless the Constitution itself withholds
PoliRev | PIL Assignment No. 1|60
it. Furthermore, the Constitution itself provides that the execution of the laws is only one
of the powers of the President. It also grants the President other powers that do not
involve the execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so
enumerated,
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between
the Governor-General of the Philippines and the Legislature may vote the shares of stock
held by the Government to elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to
do so, said:
...Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative functions
or with the doing of anything which is in aid of performance of any such functions by the
legislature. Putting aside for the moment the question whether the duties devolved upon
these members are vested by the Organic Act in the Governor-General, it is clear that they
are not legislative in character, and still more clear that they are not judicial. The fact that
they do not fall within the authority of either of these two constitutes logical ground for
concluding that they do fall within that of the remaining one among which the powers of
government are divided ....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of
dissent we find reinforcement for the view that it would indeed be a folly to construe the
powers of a branch of government to embrace only what are specifically mentioned in the
Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and
white. Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. ....
xxxxxxxxx
 PoliRev | PIL Assignment No. 1|61

It does not seem to need argument to show that however we may disguise it by veiling requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
words we do not and cannot carry out the distinction between legislative and executive 79690-707, October 7, 1981.]
action with mathematical precision and divide the branches into watertight compartments,
were it ever so desirable to do so, which I am far from believing that it is, or that the To the President, the problem is one of balancing the general welfare and the common
Constitution requires. [At 210- 211.] good against the exercise of rights of certain individuals. The power involved is the
President's residual power to protect the general welfare of the people. It is founded on the
The Power Involved duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is
not only the power of the President but also his duty to do anything not forbidden by the
The Constitution declares among the guiding principles that "[t]he prime duty of Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153].
theGovernment is to serve and protect the people" and that "[t]he maintenance of peace It is a power borne by the President's duty to preserve and defend the Constitution. It also
and order,the protection of life, liberty, and property, and the promotion of the general may be viewed as a power implicit in the President's duty to take care that the laws are
welfare are essential for the enjoyment by all the people of the blessings of democracy." faithfully executed [see Hyman, The American President, where the author advances the
[Art. II, Secs. 4 and 5.] view that an allowance of discretionary power is unavoidable in any government and is
best lodged in the President].
Admittedly, service and protection of the people, the maintenance of peace and order, the
protection of life, liberty and property, and the promotion of the general welfare are More particularly, this case calls for the exercise of the President's powers as protector of
essentially ideals to guide governmental action. But such does not mean that they are the peace. Rossiter The American Presidency].The power of the President to keep the
empty words. Thus, in the exercise of presidential functions, in drawing a plan of peace is not limited merely to exercising the commander-in-chief powers in times of
government, and in directing implementing action for these plans, or from another point of emergency or to leading the State against external and internal threats to its existence.
view, in making any decision as President of the Republic, the President has to consider The President is not only clothed with extraordinary powers in times of emergency, but is
these principles, among other things, and adhere to them. also tasked with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
Faced with the problem of whether or not the time is right to allow the Marcoses to return discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not
to the Philippines, the President is, under the Constitution, constrained to consider these in any way diminished by the relative want of an emergency specified in the commander-
basic principles in arriving at a decision. More than that, having sworn to defend and in-chief provision. For in making the President commander-in-chief the enumeration of
uphold the Constitution, the President has the obligation under the Constitution to protect powers that follow cannot be said to exclude the President's exercising as Commander-in-
the people, promote their welfare and advance the national interest. It must be borne in Chief powers short of the calling of the armed forces, or suspending the privilege of the
mind that the Constitution, aside from being an allocation of power is also a social contract writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain
whereby the people have surrendered their sovereign powers to the State for the common public order and security.
good. Hence, lest the officers of the Government exercising the powers delegated by the
people forget and the servants of the people become rulers, the Constitution reminds That the President has the power under the Constitution to bar the Marcose's from
everyone that "[s]overeignty resides in the people and all government authority emanates returning has been recognized by memembers of the Legislature, and is manifested by the
from them." [Art. II, Sec. 1.] Resolution proposed in the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish
The resolution of the problem is made difficult because the persons who seek to return to gesture for true national reconciliation and as irrevocable proof of our collective adherence
the country are the deposed dictator and his family at whose door the travails of the to uncompromising respect for human rights under the Constitution and our laws." [House
country are laid and from whom billions of dollars believed to be ill-gotten wealth are Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's
sought to be recovered. The constitutional guarantees they invoke are neither absolute nor power to bar the Marcoses from returning to the Philippines, rather, it appeals to the
inflexible. For the exercise of even the preferred freedoms of speech and ofexpression, President's sense of compassion to allow a man to come home to die in his country.
although couched in absolute terms, admits of limits and must be adjusted to the
 PoliRev | PIL Assignment No. 1|62

What we are saying in effect is that the request or demand of the Marcoses to be allowed government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No.
to return to the Philippines cannot be considered in the light solely of the constitutional L-33964, December 11, 1971, 42 SCRA 4481 that:]
provisions guaranteeing liberty of abode and the right to travel, subject to certain
exceptions, or of case law which clearly never contemplated situations even remotely Article VII of the [1935] Constitution vests in the Executive the power to suspend the
similar to the present one. It must be treated as a matter that is appropriately addressed privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle
to those residual unstated powers of the President which are implicit in and correlative to of separation of powers underlying our system of government, the Executive is supreme
the paramount duty residing in that office to safeguard and protect general welfare. In that within his own sphere. However, the separation of powers, under the Constitution, is not
context, such request or demand should submit to the exercise of a broader discretion on absolute. What is more, it goes hand in hand with the system of checks and balances,
the part of the President to determine whether it must be granted or denied. under which the Executive is supreme, as regards the suspension of the privilege, but only
if and when he acts within the sphere alloted to him by the Basic Law, and the authority to
The Extent of Review determine whether or not he has so acted is vested in the Judicial Department, which, in
this respect, is, in turn, constitutionally supreme. In the exercise of such authority, the
Under the Constitution, judicial power includes the duty to determine whether or not there function of the Court is merely to check — not to supplant the Executive, or to ascertain
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part merely whether he has gone beyond the constitutional limits of his jurisdiction, not to
of any branch or instrumentality of the Government." [Art. VIII, Sec. 1] Given this exercise the power vested in him or to determine the wisdom of his act [At 479-480.]
wording, we cannot agree with the Solicitor General that the issue constitutes a political
question which is beyond the jurisdiction of the Court to decide. Accordingly, the question for the Court to determine is whether or not there exist factual
bases for the President to conclude that it was in the national interest to bar the return of
The present Constitution limits resort to the political question doctrine and broadens the the Marcoses to the Philippines. If such postulates do exist, it cannot be said that she has
scope of judicial inquiry into areas which the Court, under previous constitutions, would acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar
have normally left to the political departments to decide. But nonetheless there remain their return.
issues beyond the Court's jurisdiction the determination of which is exclusively for the
President, for Congress or for the people themselves through a plebiscite or referendum. We find that from the pleadings filed by the parties, from their oral arguments, and the
We cannot, for example, question the President's recognition of a foreign government, no facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of
matter how premature or improvident such action may appear. We cannot set aside a the Philippines and the National Security Adviser, wherein petitioners and respondents
presidential pardon though it may appear to us that the beneficiary is totally undeserving were represented, there exist factual bases for the President's decision..
of the grant. Nor can we amend the Constitution under the guise of resolving a dispute
brought before us because the power is reserved to the people. The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a well-organized communist insurgency, a separatist movement in
There is nothing in the case before us that precludes our determination thereof on the Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity
political question doctrine. The deliberations of the Constitutional Commission cited by of military men, police officers and civilian officials, to mention only a few. The documented
petitioners show that the framers intended to widen the scope of judicial review but they history of the efforts of the Marcose's and their followers to destabilize the country, as
did not intend courts of justice to settle all actual controversies before them. When political earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at
questions are involved, the Constitution limits the determination to whether or not there this time would only exacerbate and intensify the violence directed against the State and
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part instigate more chaos.
of the official whose action is being questioned. If grave abuse is not established, the Court
will not substitute its judgment for that of the official concerned and decide a matter which As divergent and discordant forces, the enemies of the State may be contained. The
by its nature or by law is for the latter alone to decide. In this light, it would appear clear military establishment has given assurances that it could handle the threats posed by
that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial particular groups. But it is the catalytic effect of the return of the Marcoses that may prove
power," which specifically empowers the courts to determine whether or not there has to be the proverbial final straw that would break the camel's back. With these before her,
been a grave abuse of discretion on the part of any branch or instrumentality of the the President cannot be said to have acted arbitrarily and capriciously and whimsically in
 PoliRev | PIL Assignment No. 1|63

determining that the return of the Marcoses poses a serious threat to the national interest
and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the
escalation of violence against the State, that would be the time for the President to step in
and exercise the commander-in-chief powers granted her by the Constitution to suppress
or stamp out such violence. The State, acting through the Government, is not precluded
from taking pre- emptive action against threats to its existence if, though still nascent they
are perceived as apt to become serious and direct. Protection of the people is the essence
of the duty of government. The preservation of the State the fruition of the people's
sovereignty is an obligation in the highest order. The President, sworn to preserve and
defend the Constitution and to see the faithful execution the laws, cannot shirk from that
responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover
from the hardships brought about by the plunder of the economy attributed to the
Marcoses and their close associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed
away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually
increasing burden imposed on the economy by the excessive foreign borrowing during the
Marcos regime, which stifles and stagnates development and is one of the root causes of
widespread poverty and all its attendant ills. The resulting precarious state of our economy
is of common knowledge and is easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the return of the Marcoses
would wipe away the gains achieved during the past few years and lead to total economic
collapse. Given what is within our individual and common knowledge of the state of the
economy, we cannot argue with that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former
President Marcos and his family at the present time and under present circumstances
poses a serious threat to national interest and welfare and in prohibiting their return to the
Philippines, the instant petition is hereby DISMISSED.

SO ORDERED.

DOCTRINE OF TRANSFORMATION
7. G.R. No. L-35131 November 29, 1972
THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners,
vs.
HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First
Instance of Rizal, MAJOR WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and
CAPTAIN PEDRO S. NAVARRO of the Constabulary Offshore Action Center
(COSAC), respondents.
TEEHANKEE, J.:p
An original action for certiorari and prohibition to set aside respondent judge's refusal to
quash a search warrant issued by him at the instance of respondents COSAC (Constabulary
Offshore Action Center) officers for the search and seizure of the personal effects of
petitioner official of the WHO (World Health Organization) notwithstanding his being
entitled to diplomatic immunity, as duly recognized by the executive branch of the
Philippine Government and to prohibit respondent judge from further proceedings in the
matter.
Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining
respondents from executing the search warrant in question.
Respondents COSAC officers filed their answer joining issue against petitioners and seeking
to justify their act of applying for and securing from respondent judge the warrant for the
search and seizure of ten crates consigned to petitioner Verstuyft and stored at the Eternit
Corporation warehouse on the ground that they "contain large quantities of highly dutiable
goods" beyond the official needs of said petitioner "and the only lawful way to reach these
articles and effects for purposes of taxation is through a search warrant." 1
The Court thereafter called for the parties' memoranda in lieu of oral argument, which
were filed on August 3, 1972 by respondents and on August 21, 1972 by petitioners, and
the case was thereafter deemed submitted for decision.
It is undisputed in the record that petitioner Dr. LeonceVerstuyft, who was assigned on
December 6, 1971 by the WHO from his last station in Taipei to the Regional Office in
Manila as Acting Assistant Director of Health Services, is entitled to diplomatic immunity,
pursuant to the Host Agreement executed on July 22, 1951 between the Philippine
Government and the World Health Organization.
PoliRev | PIL Assignment No. 1|64
Such diplomatic immunity carries with it, among other diplomatic privileges and
immunities, personal inviolability, inviolability of the official's properties, exemption from
local jurisdiction, and exemption from taxation and customs duties.
When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the
Philippines as unaccompanied baggage on January 10, 1972, they were accordingly
allowed free entry from duties and taxes. The crates were directly stored at the Eternit
Corporation's warehouse at Mandaluyong, Rizal, "pending his relocation into permanent
quarters upon the offer of Mr. Berg, Vice President of Eternit who was once a patient of Dr.
Verstuyft in the Congo." 2
Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon application
on the same date of respondents COSAC officers search warrant No. 72-138 for alleged
violation of Republic Act 4712 amending section 3601 of the Tariff and Customs
Code 3 directing the search and seizure of the dutiable items in said crates.
Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the Western
Pacific with station in Manila, Secretary of Foreign Affairs Carlos P. Romulo, personally
wired on the same date respondent Judge advising that "Dr. Verstuyft is entitled to
immunity from search in respect of his personal baggage as accorded to members of
diplomatic missions" pursuant to the Host Agreement and requesting suspension of the
search warrant order "pending clarification of the matter from the ASAC."
Respondent judge set the Foreign Secretary's request for hearing and heard the same on
March 16, 1972, but notwithstanding the official plea of diplomatic immunity interposed by
a duly authorized representative of the Department of Foreign Affairs who furnished the
respondent judge with a list of the articles brought in by petitioner Verstuyft, respondent
judge issued his order of the same date maintaining the effectivity of the search warrant
issued by him, unless restrained by a higher court. 4
Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of
pleading his diplomatic immunity and motion to quash search warrant of April 12, 1972
failed to move respondent judge.
At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared
and filed an extended comment stating the official position of the executive branch of the
Philippine Government that petitioner Verstuyft is entitled to diplomatic immunity, he did
not abuse his diplomatic immunity, 5 and that court proceedings in the receiving or host
State are not the proper remedy in the case of abuse of diplomatic immunity. 6
The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of the
search warrant. Respondent judge nevertheless summarily denied quashal of the search
 PoliRev | PIL Assignment No. 1|65

warrant per his order of May 9, 1972 "for the same reasons already stated in (his) the matter, namely, the Secretaries of Foreign Affairs and of Finance, could not justify
aforesaid order of March 16, 1972" disregarding Foreign Secretary Romulo's plea of respondent judge's denial of the quashal of the search warrant.
diplomatic immunity on behalf of Dr. Verstuyft.
As already stated above, and brought to respondent court's attention, 13 the Philippine
Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World Government is bound by the procedure laid down in Article VII of the Convention on the
Health Organization (WHO) itself in full assertion of petitioner Verstuyft's being entitled "to Privileges and Immunities of the Specialized Agencies of the United Nations 14 for
all privileges and immunities, exemptions and facilities accorded to diplomatic envoys in consultations between the Host State and the United Nations agency concerned to
accordance with international law" under section 24 of the Host Agreement. determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to
ensure that no repetition occurs and for other recourses. This is a treaty commitment
The writs of certiorari and prohibition should issue as prayed for. voluntarily assumed by the Philippine Government and as such, has the force and effect of
law.
1. The executive branch of the Philippine Government has expressly recognized that
petitioner Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Hence, even assuming arguendo as against the categorical assurance of the executive
Host Agreement. The Department of Foreign Affairs formally advised respondent judge of branch of government that respondent judge had some ground to prefer respondents
the Philippine Government's official position that accordingly "Dr. Verstuyft cannot be the COSAC officers' suspicion that there had been an abuse of diplomatic immunity, the
subject of a Philippine court summons without violating an obligation in international law of continuation of the search warrant proceedings before him was not the proper remedy. He
the Philippine Government" and asked for the quashal of the search warrant, since his should, nevertheless, in deference to the exclusive competence and jurisdiction of the
personal effects and baggages after having been allowed free entry from all customs duties executive branch of government to act on the matter, have acceded to the quashal of the
and taxes, may not be baselessly claimed to have been "unlawfully imported" in violation search warrant, and forwarded his findings or grounds to believe that there had been such
of the tariff and customs code as claimed by respondents COSAC officers. The Solicitor- abuse of diplomatic immunity to the Department of Foreign Affairs for it to deal with, in
General, as principal law officer of the Government, 7 likewise expressly affirmed said accordance with the aforementioned Convention, if so warranted.
petitioner's right to diplomatic immunity and asked for the quashal of the search warrant.
3. Finally, the Court has noted with concern the apparent lack of coordination between the
It is a recognized principle of international law and under our system of separation of various departments involved in the subject-matter of the case at bar, which made it
powers that diplomatic immunity is essentially a political question and courts should refuse possible for a small unit, the COSAC, to which respondents officers belong, seemingly to
to look beyond a determination by the executive branch of the government, 8 and where disregard and go against the authoritative determination and pronouncements of both the
the plea of diplomatic immunity is recognized and affirmed by the executive branch of the Secretaries of Foreign Affairs and of Finance that petitioner Verstuyft is entitled to
government as in the case at bar, it is then the duty of the courts to accept the claim of diplomatic immunity, as confirmed by the Solicitor-General as the principal law officer of
immunity upon appropriate suggestion by the principal law officer of the government, the the Government. Such executive determination properly implemented should have
Solicitor General in this case, or other officer acting under his direction.9 Hence, in normally constrained respondents officers themselves to obtain the quashal of the search
adherence to the settled principle that courts may not so exercise their jurisdiction by warrant secured by them rather than oppose such quashal up to this Court, to the
seizure and detention of property, as to embarrass the executive arm of the government in embarrassment of said department heads, if not of the Philippine Government itself vis a
conducting foreign relations, it is accepted doctrine that "in such cases the judicial vis the petitioners. 15
department of (this) government follows the action of the political branch and will not
embarrass the latter by assuming an antagonistic jurisdiction." 10 The seriousness of the matter is underscored when the provisions of Republic Act 75
enacted since October 21, 1946 to safeguard the jurisdictional immunity of diplomatic
2. The unfortunate fact that respondent judge chose to rely on the suspicion of officials in the Philippines are taken into account. Said Act declares as null and void writs or
respondents COSAC officers "that the other remaining crates unopened contain contraband processes sued out or prosecuted whereby inter alia the person of an ambassador or public
items" 11 rather than on the categorical assurance of the Solicitor-General that petitioner minister is arrested or imprisoned or his goods or chattels are seized or attached and
Verstuyft did not abuse his diplomatic immunity, 12 which was based in turn on the official makes it a penal offense for "every person by whom the same is obtained or prosecuted,
positions taken by the highest executive officials with competence and authority to act on
 PoliRev | PIL Assignment No. 1|66

whether as party or as attorney, and every officer concerned in executing it" to obtain or
enforce such writ or process. 16

The Court, therefore, holds that respondent judge acted without jurisdiction and with grave
abuse of discretion in not ordering the quashal of the search warrant issued by him in
disregard of the diplomatic immunity of petitioner Verstuyft.

ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and
the temporary restraining order heretofore issued against execution or enforcement of the
questioned search warrant, which is hereby declared null and void, is hereby made
permanent. The respondent court is hereby commanded to desist from further proceedings
in the matter. No costs, none having been prayed for.

The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of
Justice for such action as he may find appropriate with regard to the matters mentioned in
paragraph 3 hereof. So ordered.
 PoliRev | PIL Assignment No. 1|67

CONFLICT BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW (a) that R.A. 6734, or parts thereof, violates the Constitution, and

8. G.R. No. 89651 November 10, 1989 (b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.

DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC
DELANGALEN, CELSO PALMA, ALI MONTANA BABAO, JULMUNIR JANNARAL,
RASHID SABER, and DATU JAMAL ASHLEY ABBAS, representing the other
taxpayers of Mindanao, petitioners,
vs.
COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE,
DEPARTMENT SECRETARY OF BUDGET AND MANAGEMENT, respondents.
G.R. No. 89965 November 10, 1989
ATTY. ABDULLAH D. MAMA-O, petitioner,
vs.
HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the Budget, and
the COMMISSION ON ELECTIONS, respondents.
The Tripoli Agreement, more specifically, the Agreement Between the government of the
Republic of the Philippines of the Philippines and Moro National Liberation Front with the
Participation of the Quadripartie Ministerial Commission Members of the Islamic Conference
and the Secretary General of the Organization of Islamic Conference" took effect on
December 23, 1976. It provided for "[t]he establishment of Autonomy in the southern
Philippines within the realm of the sovereignty and territorial integrity of the Republic of
the Philippines" and enumerated the thirteen (13) provinces comprising the "areas of
autonomy." 2
In 1987, a new Constitution was ratified, which the for the first time provided for regional
autonomy, Article X, section 15 of the charter provides that "[t]here shall be created
autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing common and distinctive historical and
cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as territorial
integrity of the Republic of the Philippines."

CORTES, J.: To effectuate this mandate, the Constitution further provides:

The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) Sec. 16. The President shall exercise general supervision over autonomous regions to
cities in Mindanao and Palawan, 1 scheduled for November 19, 1989, in implementation of ensure that the laws are faithfully executed.
Republic Act No. 6734, entitled "An Act Providing for an Organic Act for the Autonomous
Region in Muslim Mindanao." Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by
law to the autonomous regions shall be vested in the National Government.
These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections
(COMELEC) from conducting the plebiscite and the Secretary of Budget and Management Sec. 18. The Congress shall enact an organic act for each autonomous region with the
from releasing funds to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or assistance and participation of the regional consultative commission composed of
parts thereof, unconstitutional . representatives appointed by the President from a list of nominees from multisectoral
bodies. The organic act shall define the basic structure of government for the region
After a consolidated comment was filed by Solicitor General for the respondents, which the consisting of the executive and representative of the constituent political units. The organic
Court considered as the answer, the case was deemed submitted for decision, the issues acts shall likewise provide for special courts with personal, family, and property law
having been joined. Subsequently, petitioner Mama-o filed a "Manifestation with Motion for jurisdiction consistent with the provisions of this Constitution and national laws.
Leave to File Reply on Respondents' Comment and to Open Oral Arguments," which the
Court noted. The creation of the autonomous region shall be effective when approved by majority of the
votes cast by the constituent units in a plebiscite called for the purpose, provided that only
The arguments against R.A. 6734 raised by petitioners may generally be categorized into the provinces, cities, and geographic areas voting favorably in such plebiscite shall be
either of the following: included in the autonomous region.

Sec. 19 The first Congress elected under this Constitution shall, within eighteen months
from the time of organization of both Houses, pass the organic acts for the autonomous
regions in Muslim Mindanao and the Cordilleras.
Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution
and national laws, the organic act of autonomous regions shall provide for legislative
powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.
Sec. 21. The preservation of peace and order within the regions shall be the responsibility
of the local police agencies which shall be organized, maintained, supervised, and utilized
in accordance with applicable laws. The defense and security of the region shall be the
responsibility of the National Government.
Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on
August 1, 1989.
1. The Court shall dispose first of the second category of arguments raised by petitioners,
i.e. that certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli
Agreement.
Petitioners premise their arguments on the assumption that the Tripoli Agreement is part
Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the
of the law of the land, being a binding international agreement . The Solicitor General
Constitution which sets forth the conditions necessary for the creation of the autonomous
asserts that the Tripoli Agreement is neither a binding treaty, not having been entered into
PoliRev | PIL Assignment No. 1|68
by the Republic of the Philippines with a sovereign state and ratified according to the
provisions of the 1973 or 1987 Constitutions, nor a binding international agreement.
We find it neither necessary nor determinative of the case to rule on the nature of the
Tripoli Agreement and its binding effect on the Philippine Government whether under public
international or internal Philippine law. In the first place, it is now the Constitution itself
that provides for the creation of an autonomous region in Muslim Mindanao. The standard
for any inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in
the Constitution. Thus, any conflict between the provisions of R.A. No. 6734 and the
provisions of the Tripoli Agreement will not have the effect of enjoining the implementation
of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a
binding treaty or international agreement, it would then constitute part of the law of the
land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the
Congress of the Philippines, rather it would be in the same class as the latter [SALONGA,
PUBLIC INTERNATIONAL LAW 320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580
(1884) and Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if at all, R.A. No. 6734 would be
amendatory of the Tripoli Agreement, being a subsequent law. Only a determination by
this Court that R.A. No. 6734 contravened the Constitution would result in the granting of
the reliefs sought. 3
2. The Court shall therefore only pass upon the constitutional questions which have been
raised by petitioners.
Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region
in Mindanao, contrary to the aforequoted provisions of the Constitution on the autonomous
region which make the creation of such region dependent upon the outcome of the
plebiscite.
In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which
declares that "[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be
composed of provinces and cities voting favorably in the plebiscite called for the purpose,
in accordance with Section 18, Article X of the Constitution." Petitioner contends that the
tenor of the above provision makes the creation of an autonomous region absolute, such
that even if only two provinces vote in favor of autonomy, an autonomous region would
still be created composed of the two provinces where the favorable votes were obtained.
The matter of the creation of the autonomous region and its composition needs to be
clarified.

region. The reference to the constitutional provision cannot be glossed over for it clearly
indicates that the creation of the autonomous region shall take place only in accord with
the constitutional requirements. Second, there is a specific provision in the Transitory
Provisions (Article XIX) of the Organic Act, which incorporates substantially the same
requirements embodied in the Constitution and fills in the details, thus:
SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect
when approved by a majority of the votes cast by the constituent units provided in
paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier
than ninety (90) days or later than one hundred twenty (120) days after the approval of
this Act: Provided, That only the provinces and cities voting favorably in such plebiscite
shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities
which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the
existing administrative determination, merge the existing regions.
Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region
shall take effect only when approved by a majority of the votes cast by the constituent
units in a plebiscite, and only those provinces and cities where a majority vote in favor of
the Organic Act shall be included in the autonomous region. The provinces and cities
wherein such a majority is not attained shall not be included in the autonomous region. It
may be that even if an autonomous region is created, not all of the thirteen (13) provinces
and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall be included
therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will
therefore be determinative of (1) whether there shall be an autonomous region in Muslim
Mindanao and (2) which provinces and cities, among those enumerated in R.A. No. 6734,
shall compromise it. [See III RECORD OF THE CONSTITUTIONAL COMMISSION 482-492
(1986)].
As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao
is made effective upon the approval "by majority of the votes cast by the constituent units
in a plebiscite called for the purpose" [Art. X, sec. 18]. The question has been raised as to
what this majority means. Does it refer to a majority of the total votes cast in the
plebiscite in all the constituent units, or a majority in each of the constituent units, or
both?
We need not go beyond the Constitution to resolve this question.
If the framers of the Constitution intended to require approval by a majority of all the Petitioner's argument is not tenable. The Constitution lays down the standards by which
votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, Congress shall determine which areas should constitute the autonomous region. Guided by
it is provided that "[t]his Constitution shall take effect immediately upon its ratification by these constitutional criteria, the ascertainment by Congress of the areas that share
common attributes is within the exclusive realm of the legislature's discretion. Any review
PoliRev | PIL Assignment No. 1|69
a majority of the votes cast in a plebiscite held for the purpose ... Comparing this with the
provision on the creation of the autonomous region, which reads:
The creation of the autonomous region shall be effective when approved by majority of the
votes cast by the constituent units in a plebiscite called for the purpose, provided that only
provinces, cities and geographic areas voting favorably in such plebiscite shall be included
in the autonomous region. [Art. X, sec, 18, para, 2].
it will readily be seen that the creation of the autonomous region is made to depend, not
on the total majority vote in the plebiscite, but on the will of the majority in each of the
constituent units and the proviso underscores this. for if the intention of the framers of the
Constitution was to get the majority of the totality of the votes cast, they could have
simply adopted the same phraseology as that used for the ratification of the Constitution,
i.e. "the creation of the autonomous region shall be effective when approved by a majority
of the votes cast in a plebiscite called for the purpose."
It is thus clear that what is required by the Constitution is a simple majority of votes
approving the organic Act in individual constituent units and not a double majority of the
votes in all constituent units put together, as well as in the individual constituent units.
More importantly, because of its categorical language, this is also the sense in which the
vote requirement in the plebiscite provided under Article X, section 18 must have been
understood by the people when they ratified the Constitution.
Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand,
maintains that only those areas which, to his view, share common and distinctive historical
and cultural heritage, economic and social structures, and other relevant characteristics
should be properly included within the coverage of the autonomous region. He insists that
R.A. No. 6734 is unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi,
Lanaodel Sur, Lanao del Norte and Maguindanao and the cities of Marawi and Cotabato,
and not all of the thirteen (13) provinces and nine (9) cities included in the Organic Act,
possess such concurrence in historical and cultural heritage and other relevant
characteristics. By including areas which do not strictly share the same characteristics. By
including areas which do not strictly share the same characteristic as the others, petitioner
claims that Congress has expanded the scope of the autonomous region which the
constitution itself has prescribed to be limited.
 PoliRev | PIL Assignment No. 1|70

of this ascertainment would have to go into the wisdom of the law. This the Court cannot As enshrined in the Constitution, judicial power includes the duty to settle actual
do without doing violence to the separation of governmental powers. [Angara v. Electoral controversies involving rights which are legally demandable and enforceable. [Art. VIII,
Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R. No.L-20387, January 31, 1968, 22 Sec. 11. As a condition precedent for the power to be exercised, an actual controversy
SCRA 424]. between litigants must first exist [Angara v. Electoral Commission, supra; Tan v.
Macapagal, G.R. No. L-34161, February 29, 1972, 43 SCRA 677]. In the present case, no
After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, actual controversy between real litigants exists. There are no conflicting claims involving
petitioner Mama-o would then adopt the extreme view that other non-Muslim areas in the application of national law resulting in an alleged violation of religious freedom. This
Mindanao should likewise be covered. He argues that since the Organic Act covers several being so, the Court in this case may not be called upon to resolve what is merely a
non-Muslim areas, its scope should be further broadened to include the rest of the non- perceived potential conflict between the provisions the Muslim Code and national law.
Muslim areas in Mindanao in order for the other non-Muslim areas denies said areas equal
protection of the law, and therefore is violative of the Constitution. Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734
which, among others, states:
Petitioner's contention runs counter to the very same constitutional provision he had earlier
invoked. Any determination by Congress of what areas in Mindanao should compromise the . . . Provided, That only the provinces and cities voting favorably in such plebiscite shall be
autonomous region, taking into account shared historical and cultural heritage, economic included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in
and social structures, and other relevant characteristics, would necessarily carry with it the the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the
exclusion of other areas. As earlier stated, such determination by Congress of which areas existing administrative regions: Provided, however, that the President may, by
should be covered by the organic act for the autonomous region constitutes a recognized administrative determination, merge the existing regions.
legislative prerogative, whose wisdom may not be inquired into by this Court.
According to petitioners, said provision grants the President the power to merge regions, a
Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 power which is not conferred by the Constitution upon the President. That the President
(1963); Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land tenure may choose to merge existing regions pursuant to the Organic Act is challenged as being in
Administration, G.R. No. L-21064, February 18, 1970, 31 SCRA 413]. In Dumlao v. conflict with Article X, Section 10 of the Constitution which provides:
Commission on Elections G.R. No. 52245, January 22, 1980, 95 SCRA 392], the Court
ruled that once class may be treated differently from another where the groupings are No province, city, municipality, or barangay may be created, divided, merged, abolished,
based on reasonable and real distinctions. The guarantee of equal protection is thus not or its boundary substantially altered, except in accordance with the criteria established in
infringed in this case, the classification having been made by Congress on the basis of the local government code and subject to approval by a majority of the votes cast in a
substantial distinctions as set forth by the Constitution itself. plebiscite in the political units directly affected.

Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the
constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers
on a provision in the Organic Act which mandates that should there be any conflict
between the Muslim Code [P.D. No. 1083] and the Tribal Code (still be enacted) on the one
had, and the national law on the other hand, the Shari'ah courts created under the same
Act should apply national law. Petitioners maintain that the islamic law (Shari'ah) is
derived from the Koran, which makes it part of divine law. Thus it may not be subjected to
any "man-made" national law. Petitioner Abbas supports this objection by enumerating
possible instances of conflict between provisions of the Muslim Code and national law,
wherein an application of national law might be offensive to a Muslim's religious
convictions.
It must be pointed out that what is referred to in R.A. No. 6734 is the merger of
administrative regions, i.e. Regions I to XII and the National Capital Region, which are
mere groupings of contiguous provinces for administrative purposes [Integrated
Reorganization Plan (1972), which was made as part of the law of the land by Pres. dec.
No. 1, Pres. Dec. No. 742]. Administrative regions are not territorial and political
subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the
Constitution]. While the power to merge administrative regions is not expressly provided
for in the Constitution, it is a power which has traditionally been lodged with the President
to facilitate the exercise of the power of general supervision over local governments [see
Art. X, sec. 4 of the Constitution]. There is no conflict between the power of the President
to merge administrative regions with the constitutional provision requiring a plebiscite in
the merger of local government units because the requirement of a plebiscite in a merger
 PoliRev | PIL Assignment No. 1|71

expressly applies only to provinces, cities, municipalities or barangays, not to WHEREFORE, the petitions are DISMISSED for lack of merit.
administrative regions.
SO ORDERED.
Petitioners likewise question the validity of provisions in the Organic Act which create an
Oversight Committee to supervise the transfer to the autonomous region of the powers,
appropriations, and properties vested upon the regional government by the organic Act
[Art. XIX, Secs. 3 and 4]. Said provisions mandate that the transfer of certain national
government offices and their properties to the regional government shall be made
pursuant to a schedule prescribed by the Oversight Committee, and that such transfer
should be accomplished within six (6) years from the organization of the regional
government.

It is asserted by petitioners that such provisions are unconstitutional because while the
Constitution states that the creation of the autonomous region shall take effect upon
approval in a plebiscite, the requirement of organizing an Oversight committee tasked with
supervising the transfer of powers and properties to the regional government would in
effect delay the creation of the autonomous region.

Under the Constitution, the creation of the autonomous region hinges only on the result of
the plebiscite. if the Organic Act is approved by majority of the votes cast by constituent
units in the scheduled plebiscite, the creation of the autonomous region immediately takes
effect delay the creation of the autonomous region.

Under the constitution, the creation of the autonomous region hinges only on the result of
the plebiscite. if the Organic Act is approved by majority of the votes cast by constituent
units in the scheduled plebiscite, the creation of the autonomous region immediately takes
effect. The questioned provisions in R.A. No. 6734 requiring an oversight Committee to
supervise the transfer do not provide for a different date of effectivity. Much less would the
organization of the Oversight Committee cause an impediment to the operation of the
Organic Act, for such is evidently aimed at effecting a smooth transition period for the
regional government. The constitutional objection on this point thus cannot be sustained as
there is no bases therefor.

Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47
Phil. 387 (1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734;
Morfe v. Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA
30]. Those who petition this Court to declare a law, or parts thereof, unconstitutional must
clearly establish the basis for such a declaration. otherwise, their petition must fail. Based
on the grounds raised by petitioners to challenge the constitutionality of R.A. No. 6734, the
Court finds that petitioners have failed to overcome the presumption. The dismissal of
these two petitions is, therefore, inevitable.
 PoliRev | PIL Assignment No. 1|72

9. G.R. No. L-7995 May 31, 1957 or opening by aliens actually engaged in the retail business of additional stores or branches
of retail business, (6) a provision requiring aliens actually engaged in the retail business to
LAO H. ICHONG, in his own behalf and in behalf of other alien residents, present for registration with the proper authorities a verified statement concerning their
corporations and partnerships adversely affected. by Republic Act No. businesses, giving, among other matters, the nature of the business, their assets and
1180, petitioner, liabilities and their offices and principal offices of judicial entities; and (7) a provision
vs. allowing the heirs of aliens now engaged in the retail business who die, to continue such
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City business for a period of six months for purposes of liquidation.
Treasurer of Manila,respondents.
III. Grounds upon which petition is based-Answer thereto
LABRADOR, J.:
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
I. The case and issue, in general partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this
action to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the
This Court has before it the delicate task of passing upon the validity and constitutionality Secretary of Finance and all other persons acting under him, particularly city and municipal
of a legislative enactment, fundamental and far-reaching in significance. The enactment treasurers, from enforcing its provisions. Petitioner attacks the constitutionality of the Act,
poses questions of due process, police power and equal protection of the laws. It also contending that: (1) it denies to alien residents the equal protection of the laws and
poses an important issue of fact, that is whether the conditions which the disputed law deprives of their liberty and property without due process of law ; (2) the subject of the
purports to remedy really or actually exist. Admittedly springing from a deep, militant, and Act is not expressed or comprehended in the title thereof; (3) the Act violates international
positive nationalistic impulse, the law purports to protect citizen and country from the alien and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act
retailer. Through it, and within the field of economy it regulates, Congress attempts to against the transmission by aliens of their retail business thru hereditary succession, and
translate national aspirations for economic independence and national security, rooted in those requiring 100% Filipino capitalization for a corporation or entity to entitle it to
the drive and urge for national survival and welfare, into a concrete and tangible measures engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section
designed to free the national retailer from the competing dominance of the alien, so that 8 of Article XIV of the Constitution.
the country and the nation may be free from a supposed economic dependence and
bondage. Do the facts and circumstances justify the enactment? In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the
Act was passed in the valid exercise of the police power of the State, which exercise is
II. Pertinent provisions of Republic Act No. 1180 authorized in the Constitution in the interest of national economic survival; (2) the Act has
only one subject embraced in the title; (3) no treaty or international obligations are
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it infringed; (4) as regards hereditary succession, only the form is affected but the value of
nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition the property is not impaired, and the institution of inheritance is only of statutory origin.
against persons, not citizens of the Philippines, and against associations, partnerships, or
corporations the capital of which are not wholly owned by citizens of the Philippines, from IV. Preliminary consideration of legal principles involved
engaging directly or indirectly in the retail trade; (2) an exception from the above
prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are a. The police power. —
allowed to continue to engaged therein, unless their licenses are forfeited in accordance
with the law, until their death or voluntary retirement in case of natural persons, and for There is no question that the Act was approved in the exercise of the police power, but
ten years after the approval of the Act or until the expiration of term in case of juridical petitioner claims that its exercise in this instance is attended by a violation of the
persons; (3) an exception therefrom in favor of citizens and juridical entities of the United constitutional requirements of due process and equal protection of the laws. But before
States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for proceeding to the consideration and resolution of the ultimate issue involved, it would be
violation of the laws on nationalization, control weights and measures and labor and other well to bear in mind certain basic and fundamental, albeit preliminary, considerations in
laws relating to trade, commerce and industry; (5) a prohibition against the establishment the determination of the ever recurrent conflict between police power and the guarantees

of due process and equal protection of the laws. What is the scope of police power, and
how are the due process and equal protection clauses related to it? What is the province
and power of the legislature, and what is the function and duty of the courts? These
consideration must be clearly and correctly understood that their application to the facts of
the case may be brought forth with clarity and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost
impossible to limit its sweep. As it derives its existence from the very existence of the
State itself, it does not need to be expressed or defined in its scope; it is said to be co-
extensive with self-protection and survival, and as such it is the most positive and active of
all governmental processes, the most essential, insistent and illimitable. Especially is it so
under a modern democratic framework where the demands of society and of nations have
multiplied to almost unimaginable proportions; the field and scope of police power has
become almost boundless, just as the fields of public interest and public welfare have
become almost all-embracing and have transcended human foresight. Otherwise stated, as
we cannot foresee the needs and demands of public interest and welfare in this constantly
changing and progressive world, so we cannot delimit beforehand the extent or scope of
police power by which and through which the State seeks to attain or achieve interest or
welfare. So it is that Constitutions do not define the scope or extent of the police power of
the State; what they do is to set forth the limitations thereof. The most important of these
are the due process clause and the equal protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are found in the following
provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due process
of law, nor any person be denied the equal protection of the laws. (Article III, Phil.
Constitution)
These constitutional guarantees which embody the essence of individual liberty and
freedom in democracies, are not limited to citizens alone but are admittedly universal in
their application, without regard to any differences of race, of color, or of nationality.
(YickWo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not intended
to prohibit legislation, which is limited either in the object to which it is directed or by
territory within which is to operate. It does not demand absolute equality among residents;
PoliRev | PIL Assignment No. 1|73
it merely requires that all persons shall be treated alike, under like circumstances and
conditions both as to privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable grounds
exists for making a distinction between those who fall within such class and those who do
not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of legislation enacted in
pursuance of the police power. Is there public interest, a public purpose; is public welfare
involved? Is the Act reasonably necessary for the accomplishment of the legislature's
purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or
reason in connection with the matter involved; or has there not been a capricious use of
the legislative power? Can the aims conceived be achieved by the means used, or is it not
merely an unjustified interference with private interest? These are the questions that we
ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the
guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the
indispensable means for the attainment of legitimate aspirations of any democratic society.
There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there
can neither be absolute liberty, for that would mean license and anarchy. So the State can
deprive persons of life, liberty and property, provided there is due process of law; and
persons may be classified into classes and groups, provided everyone is given the equal
protection of the law. The test or standard, as always, is reason. The police power
legislation must be firmly grounded on public interest and welfare, and a reasonable
relation must exist between purposes and means. And if distinction and classification has
been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper place and role of the courts?
It must not be overlooked, in the first place, that the legislature, which is the constitutional
repository of police power and exercises the prerogative of determining the policy of the
State, is by force of circumstances primarily the judge of necessity, adequacy or
reasonableness and wisdom, of any law promulgated in the exercise of the police power, or
of the measures adopted to implement the public policy or to achieve public interest. On
the other hand, courts, although zealous guardians of individual liberty and right, have
nevertheless evinced a reluctance to interfere with the exercise of the legislative

prerogative. They have done so early where there has been a clear, patent or palpable
arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not
supposed to override legitimate policy, and courts never inquire into the wisdom of the
law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue
involved. If the disputed legislation were merely a regulation, as its title indicates, there
would be no question that it falls within the legitimate scope of legislative power. But it
goes further and prohibits a group of residents, the aliens, from engaging therein. The
problem becomes more complex because its subject is a common, trade or occupation, as
old as society itself, which from the immemorial has always been open to residents,
irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation. —
In a primitive economy where families produce all that they consume and consume all that
they produce, the dealer, of course, is unknown. But as group life develops and families
begin to live in communities producing more than what they consume and needing an
infinite number of things they do not produce, the dealer comes into existence. As villages
develop into big communities and specialization in production begins, the dealer's
importance is enhanced. Under modern conditions and standards of living, in which man's
needs have multiplied and diversified to unlimited extents and proportions, the retailer
comes as essential as the producer, because thru him the infinite variety of articles, goods
and needed for daily life are placed within the easy reach of consumers. Retail dealers
perform the functions of capillaries in the human body, thru which all the needed food and
supplies are ministered to members of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the
community. He ministers to the resident's daily needs, food in all its increasing forms, and
the various little gadgets and things needed for home and daily life. He provides his
customers around his store with the rice or corn, the fish, the salt, the vinegar, the spices
needed for the daily cooking. He has cloths to sell, even the needle and the thread to sew
them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the
owner of a small sari-sari store, to the operator of a department store or, a supermarket is
so much a part of day-to-day existence.
b. The alien retailer's trait. —
The alien retailer must have started plying his trades in this country in the bigger centers
of population (Time there was when he was unknown in provincial towns and villages).
PoliRev | PIL Assignment No. 1|74
Slowly but gradually be invaded towns and villages; now he predominates in the cities and
big centers of population. He even pioneers, in far away nooks where the beginnings of
community life appear, ministering to the daily needs of the residents and purchasing their
agricultural produce for sale in the towns. It is an undeniable fact that in many
communities the alien has replaced the native retailer. He has shown in this trade, industry
without limit, and the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of
ill-bred and insolent neighbors and customers are made in his face, but he heeds them not,
and he forgets and forgives. The community takes note of him, as he appears to be
harmless and extremely useful.
c. Alleged alien control and dominance. —
There is a general feeling on the part of the public, which appears to be true to fact, about
the controlling and dominant position that the alien retailer holds in the nation's economy.
Food and other essentials, clothing, almost all articles of daily life reach the residents
mostly through him. In big cities and centers of population he has acquired not only
predominance, but apparent control over distribution of almost all kinds of goods, such as
lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods
and articles. And were it not for some national corporations like the Naric, the Namarco,
the Facomas and the Acefa, his control over principal foods and products would easily
become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one
breath it is said that the fear is unfounded and the threat is imagined; in another, it is
charged that the law is merely the result of radicalism and pure and unabashed
nationalism. Alienage, it is said, is not an element of control; also so many unmanageable
factors in the retail business make control virtually impossible. The first argument which
brings up an issue of fact merits serious consideration. The others are matters of opinion
within the exclusive competence of the legislature and beyond our prerogative to pass
upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black
and white. Between the constitutional convention year (1935), when the fear of alien
domination and control of the retail trade already filled the minds of our leaders with fears
and misgivings, and the year of the enactment of the nationalization of the retail trade act
(1954), official statistics unmistakably point out to the ever-increasing dominance and
control by the alien of the retail trade, as witness the following tables:
 PoliRev | PIL Assignment No. 1|75

Assets Gross Sales 1949:

No.- Percent Filipino 113,659 213,451,602 60.89 462,532,901 53.47

Year and Retailers Per cent
Establishm Pesos Distribut Pesos ..........
Nationality Distribution
ents ion

Chinese 16,248 125,223,336 35.72 392,414,875 45.36

1941: ..........

Filipino 106,671 200,323,138 55.82 174,181,924 51.74 Others 486 12,056,365 3.39 10,078,364 1.17
.......... ..........

Chinese 15,356 118,348,692 32.98 148,813,239 44.21 1951:

...........

Filipino 119,352 224,053,620 61.09 466,058,052 53.07

Others 1,646 40,187,090 11.20 13,630,239 4.05 .........
............

Chinese 17,429 134,325,303 36.60 404,481,384 46.06

1947: ..........

Filipino 111,107 208,658,946 65.05 279,583,333 57.03 Others 347 8,614,025 2.31 7,645,327 87
.......... ..........

Chinese 13,774 106,156,218 33.56 205,701,134 41.96

...........

AVERAGE
Others 354 8,761,260 .49 4,927,168 1.01 ASSETS AND GROSS SALES PER ESTABLISHMENT
...........

Item Gross
1948: (Census) Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)
Filipino 113,631 213,342,264 67.30 467,161,667 60.51
..........
1941:
Chinese 12,087 93,155,459 29.38 294,894,227 38.20
..........
Filipino 1,878 1,633
.............................................
Others 422 10,514,675 3.32 9,995,402 1.29
..........
 PoliRev | PIL Assignment No. 1|76

Chinese 7,707 9,691 Chinese 7,707 24,152

.............................................. ..............................................

Others 24,415 8,281 Others 24,807 20,737

.............................................. ..............................................
.

1951:
1947:

Filipino 1,877 3,905

Filipino 1,878 2,516 .............................................
.............................................

Chinese 7,707 33,207

Chinese 7,707 14,934 .............................................
...........................................

Others 24,824 22,033

Others 24,749 13,919 ..............................................
.............................................. .

1948: (Census)
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)
Filipino 1,878 4,111
............................................. The above statistics do not include corporations and partnerships, while the figures on
Filipino establishments already include mere market vendors, whose capital is necessarily
small..
Chinese 7,707 24,398
.............................................
The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos
Others 24,916 23,686 have the edge in the number of retailers, but aliens more than make up for the numerical
.............................................. gap through their assests and gross sales which average between six and seven times
those of the very many Filipino retailers. Numbers in retailers, here, do not imply
superiority; the alien invests more capital, buys and sells six to seven times more, and
1949: gains much more. The same official report, pointing out to the known predominance of
foreign elements in the retail trade, remarks that the Filipino retailers were largely
engaged in minor retailer enterprises. As observed by respondents, the native investment
Filipino 1,878 4,069
is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit,
.............................................
price and supply.

d. Alien control and threat, subject of apprehension in Constitutional convention. —
It is this domination and control, which we believe has been sufficiently shown to exist,
that is the legislature's target in the enactment of the disputed nationalization would never
have been adopted. The framers of our Constitution also believed in the existence of this
alien dominance and control when they approved a resolution categorically declaring
among other things, that "it is the sense of the Convention that the public interest requires
the nationalization of the retail trade; . . . ." (II Aruego, The Framing of the Philippine
Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago;
and the events since then have not been either pleasant or comforting. Dean Sinco of the
University of the Philippines College of Law, commenting on the patrimony clause of the
Preamble opines that the fathers of our Constitution were merely translating the general
preoccupation of Filipinos "of the dangers from alien interests that had already brought
under their control the commercial and other economic activities of the country" (Sinco,
Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the
constitutional convention for the economic life of the citizens, in connection with the
nationalistic provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but
of recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of the
nation in somewhat the same way that it did in the crusade for political freedom. Thus . . .
it (the Constitution) envisages an organized movement for the protection of the nation not
only against the possibilities of armed invasion but also against its economic subjugation
by alien interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from
alien control, and they express sentiments of economic independence. Witness thereto is
Resolution No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino
Businessmen, and a similar resolution, approved on March 20, 1954, of the Second
National Convention of Manufacturers and Producers. The man in the street also believes,
and fears, alien predominance and control; so our newspapers, which have editorially
pointed out not only to control but to alien stranglehold. We, therefore, find alien
domination and control to be a fact, a reality proved by official statistics, and felt by all the
sections and groups that compose the Filipino community.
PoliRev | PIL Assignment No. 1|77
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade does not seem to lie in
the predominance alone; there is a prevailing feeling that such predominance may truly
endanger the national interest. With ample capital, unity of purpose and action and
thorough organization, alien retailers and merchants can act in such complete unison and
concert on such vital matters as the fixing of prices, the determination of the amount of
goods or articles to be made available in the market, and even the choice of the goods or
articles they would or would not patronize or distribute, that fears of dislocation of the
national economy and of the complete subservience of national economy and of the
consuming public are not entirely unfounded. Nationals, producers and consumers alike
can be placed completely at their mercy. This is easily illustrated. Suppose an article of
daily use is desired to be prescribed by the aliens, because the producer or importer does
not offer them sufficient profits, or because a new competing article offers bigger profits
for its introduction. All that aliens would do is to agree to refuse to sell the first article,
eliminating it from their stocks, offering the new one as a substitute. Hence, the producers
or importers of the prescribed article, or its consumers, find the article suddenly out of the
prescribed article, or its consumers, find the article suddenly out of circulation. Freedom of
trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of
alien domination. Grave abuses have characterized the exercise of the retail trade by
aliens. It is a fact within judicial notice, which courts of justice may not properly overlook
or ignore in the interests of truth and justice, that there exists a general feeling on the part
of the public that alien participation in the retail trade has been attended by a pernicious
and intolerable practices, the mention of a few of which would suffice for our purposes;
that at some time or other they have cornered the market of essential commodities, like
corn and rice, creating artificial scarcities to justify and enhance profits to unreasonable
proportions; that they have hoarded essential foods to the inconvenience and prejudice of
the consuming public, so much so that the Government has had to establish the National
Rice and Corn Corporation to save the public from their continuous hoarding practices and
tendencies; that they have violated price control laws, especially on foods and essential
commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168),
authorizing their immediate and automatic deportation for price control convictions; that
they have secret combinations among themselves to control prices, cheating the operation
of the law of supply and demand; that they have connived to boycott honest merchants
and traders who would not cater or yield to their demands, in unlawful restraint of freedom
of trade and enterprise. They are believed by the public to have evaded tax laws,
smuggled goods and money into and out of the land, violated import and export
prohibitions, control laws and the like, in derision and contempt of lawful authority. It is
also believed that they have engaged in corrupting public officials with fabulous bribes,

indirectly causing the prevalence of graft and corruption in the Government. As a matter of
fact appeals to unscrupulous aliens have been made both by the Government and by their
own lawful diplomatic representatives, action which impliedly admits a prevailing feeling
about the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things may come
in the future. The present dominance of the alien retailer, especially in the big centers of
population, therefore, becomes a potential source of danger on occasions of war or other
calamity. We do not have here in this country isolated groups of harmless aliens retailing
goods among nationals; what we have are well organized and powerful groups that
dominate the distribution of goods and commodities in the communities and big centers of
population. They owe no allegiance or loyalty to the State, and the State cannot rely upon
them in times of crisis or emergency. While the national holds his life, his person and his
property subject to the needs of his country, the alien may even become the potential
enemy of the State.
f. Law enacted in interest of national economic survival and security. —
We are fully satisfied upon a consideration of all the facts and circumstances that the
disputed law is not the product of racial hostility, prejudice or discrimination, but the
expression of the legitimate desire and determination of the people, thru their authorized
representatives, to free the nation from the economic situation that has unfortunately been
saddled upon it rightly or wrongly, to its disadvantage. The law is clearly in the interest of
the public, nay of the national security itself, and indisputably falls within the scope of
police power, thru which and by which the State insures its existence and security and the
supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next question that now poses
solution is, Does the law deny the equal protection of the laws? As pointed out above, the
mere fact of alienage is the root and cause of the distinction between the alien and the
national as a trader. The alien resident owes allegiance to the country of his birth or his
adopted country; his stay here is for personal convenience; he is attracted by the lure of
gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral,
but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he
temporarily stays and makes his living, or of that spirit of regard, sympathy and
consideration for his Filipino customers as would prevent him from taking advantage of
their weakness and exploiting them. The faster he makes his pile, the earlier can the alien
go back to his beloved country and his beloved kin and countrymen. The experience of the
country is that the alien retailer has shown such utter disregard for his customers and the
PoliRev | PIL Assignment No. 1|78
people on whom he makes his profit, that it has been found necessary to adopt the
legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a
genuine contribution to national income and wealth. He undoubtedly contributes to general
distribution, but the gains and profits he makes are not invested in industries that would
help the country's economy and increase national wealth. The alien's interest in this
country being merely transient and temporary, it would indeed be ill-advised to continue
entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out
above, their secret manipulations of stocks of commodities and prices, their utter disregard
of the welfare of their customers and of the ultimate happiness of the people of the nation
of which they are mere guests, which practices, manipulations and disregard do not attend
the exercise of the trade by the nationals, show the existence of real and actual, positive
and fundamental differences between an alien and a national which fully justify the
legislative classification adopted in the retail trade measure. These differences are certainly
a valid reason for the State to prefer the national over the alien in the retail trade. We
would be doing violence to fact and reality were we to hold that no reason or ground for a
legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction. —
The above objectionable characteristics of the exercise of the retail trade by the aliens,
which are actual and real, furnish sufficient grounds for legislative classification of retail
traders into nationals and aliens. Some may disagree with the wisdom of the legislature's
classification. To this we answer, that this is the prerogative of the law-making power.
Since the Court finds that the classification is actual, real and reasonable, and all persons
of one class are treated alike, and as it cannot be said that the classification is patently
unreasonable and unfounded, it is in duty bound to declare that the legislature acted within
its legitimate prerogative and it can not declare that the act transcends the limit of equal
protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications
among persons is not curtailed or denied by the equal protection of the laws clause. The
legislative power admits of a wide scope of discretion, and a law can be violative of the
constitutional limitation only when the classification is without reasonable basis. In addition
to the authorities we have earlier cited, we can also refer to the case of Linsey vs. Natural
Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the
application of equal protection clause to a law sought to be voided as contrary thereto:
 PoliRev | PIL Assignment No. 1|79

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the
state the power to classify in the adoption of police laws, but admits of the exercise of the
wide scope of discretion in that regard, and avoids what is done only when it is without any
reasonable basis, and therefore is purely arbitrary. 2. A classification having some
reasonable basis does not offend against that clause merely because it is not made with
mathematical nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably can be
conceived that would sustain it, the existence of that state of facts at the time the law was
enacted must be assumed. 4. One who assails the classification in such a law must carry
the burden of showing that it does not rest upon any reasonable basis but is essentially
arbitrary."
marine, as well as frauds upon the revenue in the trade coastwise, that this whole system
is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That
would be requiring a higher degree of protection for aliens as a class than for similar
classes than for similar classes of American citizens. Broadly speaking, the difference in
status between citizens and aliens constitutes a basis for reasonable classification in the
exercise of police power. (2 Am., Jur. 468-469.)

c. Authorities recognizing citizenship as basis for classification. — In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the
licensing of hawkers and peddlers, which provided that no one can obtain a license unless
The question as to whether or not citizenship is a legal and valid ground for classification he is, or has declared his intention, to become a citizen of the United States, was held
has already been affirmatively decided in this jurisdiction as well as in various courts in the valid, for the following reason: It may seem wise to the legislature to limit the business of
United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the those who are supposed to have regard for the welfare, good order and happiness of the
validity of Act No. 2761 of the Philippine Legislature was in issue, because of a condition community, and the court cannot question this judgment and conclusion. In Bloomfield vs.
therein limiting the ownership of vessels engaged in coastwise trade to corporations State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them
formed by citizens of the Philippine Islands or the United States, thus denying the right to aliens, from engaging in the traffic of liquors, was found not to be the result of race hatred,
aliens, it was held that the Philippine Legislature did not violate the equal protection clause or in hospitality, or a deliberate purpose to discriminate, but was based on the belief that
of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose an alien cannot be sufficiently acquainted with "our institutions and our life as to enable
the encouragement of Philippine shipbuilding and the safety for these Islands from foreign him to appreciate the relation of this particular business to our entire social fabric", and
interlopers. We held that this was a valid exercise of the police power, and all was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed.
presumptions are in favor of its constitutionality. In substance, we held that the limitation 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the city of
of domestic ownership of vessels engaged in coastwise trade to citizens of the Philippines Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held
does not violate the equal protection of the law and due process or law clauses of the that plainly irrational discrimination against aliens is prohibited, but it does not follow that
Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring alien race and allegiance may not bear in some instances such a relation to a legitimate
opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows: object of legislation as to be made the basis of permitted classification, and that it could
not state that the legislation is clearly wrong; and that latitude must be allowed for the
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts legislative appraisement of local conditions and for the legislative choice of methods for
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is
distinctly of that character, and forms part of an extensive system, the object of which is to a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington,
encourage American shipping, and place them on an equal footing with the shipping of 1922), the business of pawn brooking was considered as having tendencies injuring public
other nations. Almost every commercial nation reserves to its own subjects a monopoly of interest, and limiting it to citizens is within the scope of police power. A similar statute
its coasting trade; and a countervailing privilege in favor of American shipping is denying aliens the right to engage in auctioneering was also sustained in Wright vs. May,
contemplated, in the whole legislation of the United States on this subject. It is not to give L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340
the vessel an American character, that the license is granted; that effect has been (Oregon, 1924), the court said that aliens are judicially known to have different interests,
correctly attributed to the act of her enrollment. But it is to confer on her American knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses
privileges, as contra distinguished from foreign; and to preserve the Government from to them for the business of pawnbroker, pool, billiard, card room, dance hall, is not an
fraud by foreigners; in surreptitiously intruding themselves into the American commercial infringement of constitutional rights. In Templar vs. Michigan State Board of Examiners, 90

N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as barbers was held
void, but the reason for the decision was the court's findings that the exercise of the
business by the aliens does not in any way affect the morals, the health, or even the
convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed.
1479 (1947), a California statute banning the issuance of commercial fishing licenses to
person ineligible to citizenship was held void, because the law conflicts with Federal power
over immigration, and because there is no public interest in the mere claim of ownership of
the waters and the fish in them, so there was no adequate justification for the
discrimination. It further added that the law was the outgrowth of antagonism toward the
persons of Japanese ancestry. However, two Justices dissented on the theory that fishing
rights have been treated traditionally as natural resources. In Fraser vs. McConway&Tarley
Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on every employer
of foreign-born unnaturalized male persons over 21 years of age, was declared void
because the court found that there was no reason for the classification and the tax was an
arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State courts in the United
States hold that the distinction between aliens and citizens is not a valid ground for
classification. But in this decision the laws declared invalid were found to be either
arbitrary, unreasonable or capricious, or were the result or product of racial antagonism
and hostility, and there was no question of public interest involved or pursued. In Yu Cong
Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid
a Philippine law making unlawful the keeping of books of account in any language other
than English, Spanish or any other local dialect, but the main reasons for the decisions are:
(1) that if Chinese were driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they
would be deprived of their right to be advised of their business and to direct its conduct.
The real reason for the decision, therefore, is the court's belief that no public benefit would
be derived from the operations of the law and on the other hand it would deprive Chinese
of something indispensable for carrying on their business. In YickWo vs. Hopkins, 30 L. ed
220 (1885) an ordinance conferring powers on officials to withhold consent in the operation
of laundries both as to persons and place, was declared invalid, but the court said that the
power granted was arbitrary, that there was no reason for the discrimination which
attended the administration and implementation of the law, and that the motive thereof
was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law
prohibiting aliens to engage as hawkers and peddlers was declared void, because the
discrimination bore no reasonable and just relation to the act in respect to which the
classification was proposed.
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The case at bar is radically different, and the facts make them so. As we already have said,
aliens do not naturally possess the sympathetic consideration and regard for the customers
with whom they come in daily contact, nor the patriotic desire to help bolster the nation's
economy, except in so far as it enhances their profit, nor the loyalty and allegiance which
the national owes to the land. These limitations on the qualifications of the aliens have
been shown on many occasions and instances, especially in times of crisis and emergency.
We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342,
to drive home the reality and significance of the distinction between the alien and the
national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without
the intimate knowledge of our laws, customs, and usages that our own people have. So it
is likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental
environment and control have been engendered and formed under entirely different
regimes and political systems, have not the same inspiration for the public weal, nor are
they as well disposed toward the United States, as those who by citizenship, are a part of
the government itself. Further enlargement, is unnecessary. I have said enough so that
obviously it cannot be affirmed with absolute confidence that the Legislature was without
plausible reason for making the classification, and therefore appropriate discriminations
against aliens as it relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive. —
We now come to due process as a limitation on the exercise of the police power. It has
been stated by the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law
shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a
real and substantial relation to the subject sought to be attained. . . . .
x xx x xx x xx
So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may reasonably
be deemed to promote public welfare, and to enforce that policy by legislation adapted to
its purpose. The courts are without authority either to declare such policy, or, when it is
declared by the legislature, to override it. If the laws passed are seen to have a reasonable
relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the

requirements of due process are satisfied, and judicial determination to that effect renders
a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the
restriction it imposes on rights secured to individuals by the Bill of Rights are
unreasonable, and not whether it imposes any restrictions on such rights. . . .
x xx x xx x xx
. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must not
be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388.it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must constitutional limitation of reasonableness.
appear, first, that the interests of the public generally, as distinguished from those of a
particular class, require such interference; and second, that the means are reasonably The necessity of the law in question is explained in the explanatory note that accompanied
necessary for the accomplishment of the purpose, and not unduly oppressive upon the bill, which later was enacted into law:
individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an arbitrary, oppressive,
and capricious use of that power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary occupation, one of those
privileges long ago recognized as essential to the orderly pursuant of happiness by free
men; that it is a gainful and honest occupation and therefore beyond the power of the
legislature to prohibit and penalized. This arguments overlooks fact and reality and rests
on an incorrect assumption and premise, i.e., that in this country where the occupation is
PoliRev | PIL Assignment No. 1|81
engaged in by petitioner, it has been so engaged by him, by the alien in an honest
creditable and unimpeachable manner, without harm or injury to the citizens and without
ultimate danger to their economic peace, tranquility and welfare. But the Legislature has
found, as we have also found and indicated, that the privilege has been so grossly abused
by the alien, thru the illegitimate use of pernicious designs and practices, that he now
enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the
nation's economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and
ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from
the retail trade unreasonable. Arbitrary capricious, taking into account the illegitimate and
pernicious form and manner in which the aliens have heretofore engaged therein? As thus
correctly stated the answer is clear. The law in question is deemed absolutely necessary to
bring about the desired legislative objective, i.e., to free national economy from alien
control and dominance. It is not necessarily unreasonable because it affects private rights
and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the
appropriateness or adequacy under all circumstances of the means adopted to carry out its
purpose into effect (Id.) Judged by this test, disputed legislation, which is not merely
reasonable but actually necessary, must be considered not to have infringed the
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are
not citizens of the Philippines from having a strangle hold upon our economic life. If the
persons who control this vital artery of our economic life are the ones who owe no
allegiance to this Republic, who have no profound devotion to our free institutions, and
who have no permanent stake in our people's welfare, we are not really the masters of our
destiny. All aspects of our life, even our national security, will be at the mercy of other
people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who
are not citizens of the Philippines of their means of livelihood. While this bill seeks to take
away from the hands of persons who are not citizens of the Philippines a power that can be
wielded to paralyze all aspects of our national life and endanger our national security it
respects existing rights.
The approval of this bill is necessary for our national survival.
 PoliRev | PIL Assignment No. 1|82

If political independence is a legitimate aspiration of a people, then economic
independence is none the less legitimate. Freedom and liberty are not real and positive if
the people are subject to the economic control and domination of others, especially if not
of their own race or country. The removal and eradication of the shackles of foreign
economic control and domination, is one of the noblest motives that a national legislature
may pursue. It is impossible to conceive that legislation that seeks to bring it about can
infringe the constitutional limitation of due process. The attainment of a legitimate
aspiration of a people can never be beyond the limits of legislative authority.
recreant to its duties towards the country and its people would it view the sorry plight of
the nationals with the complacency and refuse or neglect to adopt a remedy
commensurate with the demands of public interest and national survival. As the repository
of the sovereign power of legislation, the Legislature was in duty bound to face the
problem and meet, through adequate measures, the danger and threat that alien
domination of retail trade poses to national economy.
d. Provisions of law not unreasonable. —

c. Law expressly held by Constitutional Convention to be within the sphere of legislative A cursory study of the provisions of the law immediately reveals how tolerant, how
action. — reasonable the Legislature has been. The law is made prospective and recognizes the right
and privilege of those already engaged in the occupation to continue therein during the
The framers of the Constitution could not have intended to impose the constitutional rest of their lives; and similar recognition of the right to continue is accorded associations
restrictions of due process on the attainment of such a noble motive as freedom from of aliens. The right or privilege is denied to those only upon conviction of certain offenses.
economic control and domination, thru the exercise of the police power. The fathers of the In the deliberations of the Court on this case, attention was called to the fact that the
Constitution must have given to the legislature full authority and power to enact legislation privilege should not have been denied to children and heirs of aliens now engaged in the
that would promote the supreme happiness of the people, their freedom and liberty. On retail trade. Such provision would defeat the law itself, its aims and purposes. Beside, the
the precise issue now before us, they expressly made their voice clear; they adopted a exercise of legislative discretion is not subject to judicial review. It is well settled that the
resolution expressing their belief that the legislation in question is within the scope of the Court will not inquire into the motives of the Legislature, nor pass upon general matters of
legislative power. Thus they declared the their Resolution: legislative judgment. The Legislature is primarily the judge of the necessity of an
enactment or of any of its provisions, and every presumption is in favor of its validity, and
That it is the sense of the Convention that the public interest requires the nationalization of though the Court may hold views inconsistent with the wisdom of the law, it may not annul
retail trade; but it abstain from approving the amendment introduced by the Delegate for the legislation if not palpably in excess of the legislative power. Furthermore, the test of
Manila, Mr. Araneta, and others on this matter because it is convinced that the National the validity of a law attacked as a violation of due process, is not its reasonableness, but
Assembly is authorized to promulgate a law which limits to Filipino and American citizens its unreasonableness, and we find the provisions are not unreasonable. These principles
the privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine also answer various other arguments raised against the law, some of which are: that the
Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.) law does not promote general welfare; that thousands of aliens would be thrown out of
employment; that prices will increase because of the elimination of competition; that there
It would do well to refer to the nationalistic tendency manifested in various provisions of is no need for the legislation; that adequate replacement is problematical; that there may
the Constitution. Thus in the preamble, a principle objective is the conservation of the be general breakdown; that there would be repercussions from foreigners; etc. Many of
patrimony of the nation and as corollary the provision limiting to citizens of the Philippines these arguments are directed against the supposed wisdom of the law which lies solely
the exploitation, development and utilization of its natural resources. And in Section 8 of within the legislative prerogative; they do not import invalidity.
Article XIV, it is provided that "no franchise, certificate, or any other form of authorization
for the operation of the public utility shall be granted except to citizens of the Philippines." VIII. Alleged defect in the title of the law
The nationalization of the retail trade is only a continuance of the nationalistic protective
policy laid down as a primary objective of the Constitution. Can it be said that a law A subordinate ground or reason for the alleged invalidity of the law is the claim that the
imbued with the same purpose and spirit underlying many of the provisions of the title thereof is misleading or deceptive, as it conceals the real purpose of the bill which is to
Constitution is unreasonable, invalid and unconstitutional? nationalize the retail business and prohibit aliens from engaging therein. The constitutional
provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:
The seriousness of the Legislature's concern for the plight of the nationals as manifested in
the approval of the radical measures is, therefore, fully justified. It would have been

No bill which may be enacted in the law shall embrace more than one subject which shall
be expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to
appraise the legislators or the public of the nature, scope and consequences of the law or
its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory
consideration of the title and the provisions of the bill fails to show the presence of
duplicity. It is true that the term "regulate" does not and may not readily and at first
glance convey the idea of "nationalization" and "prohibition", which terms express the two
main purposes and objectives of the law. But "regulate" is a broader term than either
prohibition or nationalization. Both of these have always been included within the term
regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in
page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors,
etc." sufficiently expresses the subject of an actprohibiting the sale of such liquors to
minors and to persons in the habit of getting intoxicated; such matters being properly
included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308,
quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of
restraint and prohibition of acts usually done in connection with the thing to be regulated.
While word regulate does not ordinarily convey meaning of prohibit, there is no absolute
reason why it should not have such meaning when used in delegating police power in
connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said
that the title need not be an index to the entire contents of the law (I Sutherland,
Statutory Construction, See. 4803, p. 345.) The above rule was followed the title of the Act
in question adopted the more general term "regulate" instead of "nationalize" or "prohibit".
Furthermore, the law also contains other rules for the regulation of the retail trade which
may not be included in the terms "nationalization" or "prohibition"; so were the title
changed from "regulate" to "nationalize" or "prohibit", there would have been many
provisions not falling within the scope of the title which would have made the Act invalid. X. Conclusion
The use of the term "regulate", therefore, is in accord with the principle governing the
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drafting of statutes, under which a simple or general term should be adopted in the title,
which would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in
its title is to apprise the legislators of the purposes, the nature and scope of its provisions,
and prevent the enactment into law of matters which have received the notice, action and
study of the legislators or of the public. In the case at bar it cannot be claimed that the
legislators have been appraised of the nature of the law, especially the nationalization and
the prohibition provisions. The legislators took active interest in the discussion of the law,
and a great many of the persons affected by the prohibitions in the law conducted a
campaign against its approval. It cannot be claimed, therefore, that the reasons for
declaring the law invalid ever existed. The objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation
thereby of the Charter of the United Nations and of the Declaration of the Human Rights
adopted by the United Nations General Assembly. We find no merit in the Nations Charter
imposes no strict or legal obligations regarding the rights and freedom of their subjects
(Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of
Human Rights contains nothing more than a mere recommendation or a common standard
of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the
United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that
members of the United Nations Organizations, such as Norway and Denmark, prohibit
foreigners from engaging in retail trade, and in most nations of the world laws against
foreigners engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of
April 18, 1947 is also claimed to be violated by the law in question. All that the treaty
guarantees is equality of treatment to the Chinese nationals "upon the same terms as the
nationals of any other country." But the nationals of China are not discriminating against
because nationals of all other countries, except those of the United States, who are
granted special rights by the Constitution, are all prohibited from engaging in the retail
trade. But even supposing that the law infringes upon the said treaty, the treaty is always
subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of the police power of the
State (plaston vs. Pennsylvania, 58 L. ed. 539.)
 PoliRev | PIL Assignment No. 1|84

Resuming what we have set forth above we hold that the disputed law was enacted to
remedy a real actual threat and danger to national economy posed by alien dominance and
control of the retail business and free citizens and country from dominance and control;
that the enactment clearly falls within the scope of the police power of the State, thru
which and by which it protects its own personality and insures its security and future; that
the law does not violate the equal protection clause of the Constitution because sufficient
grounds exist for the distinction between alien and citizen in the exercise of the occupation
regulated, nor the due process of law clause, because the law is prospective in operation
and recognizes the privilege of aliens already engaged in the occupation and reasonably
protects their privilege; that the wisdom and efficacy of the law to carry out its objectives
appear to us to be plainly evident — as a matter of fact it seems not only appropriate but
actually necessary — and that in any case such matter falls within the prerogative of the
Legislature, with whose power and discretion the Judicial department of the Government
may not interfere; that the provisions of the law are clearly embraced in the title, and this
suffers from no duplicity and has not misled the legislators or the segment of the
population affected; and that it cannot be said to be void for supposed conflict with treaty
obligations because no treaty has actually been entered into on the subject and the police
power may not be curtailed or surrendered by any treaty or any other conventional
agreement.

Some members of the Court are of the opinion that the radical effects of the law could
have been made less harsh in its impact on the aliens. Thus it is stated that the more time
should have been given in the law for the liquidation of existing businesses when the time
comes for them to close. Our legal duty, however, is merely to determine if the law falls
within the scope of legislative authority and does not transcend the limitations of due
process and equal protection guaranteed in the Constitution. Remedies against the
harshness of the law should be addressed to the Legislature; they are beyond our power
and jurisdiction.

The petition is hereby denied, with costs against petitioner.