Supreme Court Rules Former President Marcos Unqualified for Burial at Heroes' Cemetery

EN BANC
G.R. No. 225973 - SATURNINO C. OCAMPO, et al., Petitioners v.

REAR ADMIRAL ERNESTO C. ENRIQUEZ, (in his capacity as the
Deputy Chief of Staff for Reservist and Retiree Affairs, Armed Forces
of the Philippines), et al., Respondents.
G.R. No. 225984- REP. EDCEL LAGMAN (in his personal and official
capacities and as Honorary Chairperson of the Families of Victims of
Involuntary Disappearance [FIND], et al., Petitioners v. EXECUTIVE
SECRETARY SALVADOR C. MEDIALDEA, et al., Respondents.
G.R. No. 226097 - LORETTA ANN PARGAS-ROSALES, et al.,

Petitioners v. EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA, et al., Respondents.
G.R. No. 226116 - HEHERSON T. ALVAREZ, et al., Petitioners v.

EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, et al.,
Respondents.
G.R. No. 226117 - ZAIRA PATRICIA B. BANIAGA, et al., Petitioners

v. SECRETARY OF NATIONAL DEFENSE DELFIN N.
LORENZANA, et al., Respondents.
G.R. No. 226120 - ALGAMAR A. LATIPH, et al., Petitioners v.

SECRETARY DELFIN N. LORENZANA, sued in his capacity as
Secretary of National Defense, et al., Respondents.
G.R. No. 226294 - LEILA M. DE LIMA, in her capacity as Senator of

the Republic and as Taxpayer, Petitioner v. EXECUTIVE
SECRETARY SALVADOR C. MEDIALDEA, et al., Respondents.
Promulgated:
November 8, 2016
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~-
DISSENTING OPINION
CARPIO, J.:
The petitions seek to prevent the interment of the remains of the late
President Ferdinand E. Marcos (Marcos) at the Libingan ng mga Bayani
(LNMB).
~
Dissenting Opinion 2 G.R. Nos. 225973, 225984, 226097, 226116,
226117, 226120, and 226294
The LNMB was formerly known as the Republic Memorial Cemetery.

On 27 October 1954, then President Ramon Magsaysay issued Proclamation
No. 86, "changing the Republic Memorial Cemetery at Fort WM McKinley,
Rizal Province, to Libingan ng mga Bayani." More than a decade later, then
President Marcos issued Proclamation No. 208 on 28 May 1967, excluding
approximately 1,428,800 square meters from the Fort Bonifacio Military
Reservation for the site of the LNMB, and reserving the same for national
shrine purposes under the administration of the National Shrines
Commission. The National Shrines Commission was subsequently
abolished and its functions transferred to the Military Shrines Service of the
Philippine Veterans Affairs Office of the Department of National Defense
under Presidential Decree No. 1076, issued by then President Marcos on 26
January 1977.
On 11 September 2000, Acting Armed Forces of the Philippines

(AFP) Chief of Staff Jose M. Calimlim, by order of the Secretary of National
Defense, issued AFP Regulation 161-375 (AFPR G 161-375), 1 on the
allocation of cemetery plots at the LNMB.
Under AFPR G 161-375, the deceased persons who are qualified to be

interred at the LNMB are:
a. Medal of Valor Awardees;
b. Presidents or Commander-in-Chief, AFP;
c. Secretaries of National Defense;
d. Chiefs of Staff, AFP;
e. Generals/Flag Officers of the AFP;
f. Active and retired military personnel of the AFP to include active
draftees and trainees who died in line of duty, active reservists and
CAFGU Active Auxiliary (CAA) who died in combat operations or
combat related activities;
g. Former members of the AFP who laterally entered or joined the
Philippine Coast Guard (PCG) and the Philippine National Police (PNP);
h. Veterans of Philippine Revolution of 1890, WWI, WWII and
recognized guerillas;
i. Government Dignitaries, Statesmen, National Artists and other
deceased persons whose interment or reinterment has been approved by
the Commander-in-Chief, Congress or the Secretary of National Defense;
and
j. Former Presidents, Secretaries of Defense, Dignitaries, Statesmen,
National Artists, widows of Former Presidents, Secretaries of National
Defense and Chief[ s] of Staff.
AFPR G 161-375 also enumerates those not qualified to be interred

at the LNMB, namely:
AFPR G 161-375 superseded AFPR G 161-374 dated 27 March 1998, which in tum superseded
AFPR G 161-373 issued on 9 April 1986.
v
Dissenting Opinion 3 G.R.Nos.225973,225984,226097,226116,
226117, 226120, and 226294
a. Personnel who were dishonorably separated/reverted/ discharged

from the service; and
b. Authorized personnel who were convicted by final judgment of an
offense involving moral turpitude. (Emphasis supplied)
In a Memorandum dated 7 August 2016, the Department of National

Defense (DND) Secretary Delfin Lorenzana ordered the AFP Chief of Staff
Ricardo Visaya to undertake the necessary preparations to facilitate the
interment of Marcos at the LNMB, in compliance with the verbal order of
President Rodrigo Duterte on 11 July 2016.
The DND Memorandum resulted in the filing of these petitions, which

oppose the implementation of the DND Memorandum for the interment of
Marcos at the LNMB.
I vote to grant the petitions on the ground that Marcos is not qualified
to be interred at the LNMB, and thus the Memorandum dated 7 August
2016 of DND Secretary Lorenzana was issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
Marcos is disqualified from being interred at the LNMB
Assuming that Marcos was qualified to be interred at the LNMB as a

Medal of Valor Awardee, and as a former President of the Philippines and
Commander-in-Chief, he ceased to be qualified when he was ousted from
the Presidency by the non-violent People Power Revolution on 25 February
1986.
AFPR G 161-375, which respondents rely on to justify the interment

of Marcos at the LNMB, specifically provides that "personnel who were
dishonorably separated/reverted/discharged from the service" are not
qualified to be interred at the LNMB. Marcos, who was forcibly ousted
from the Presidency by the sovereign act of the Filipino people, falls under
this disqualification.
Dishonorable discharge from office
In Marcos v. Manglapus, 2 the Court described Marcos as "a dictator

forced out of office and into exile after causing twenty years of political,
economic and social havoc in the country." 3 In short, he was ousted by the
Filipino people. Marcos was forcibly removed from the Presidency by what
258 Phil. 479 (1989).

Id. at 492.
~
226117, 226120, and 226294
is now referred to as the People Power Revolution. This is the strongest

form of dishonorable discharge from office since it is meted out by the
direct act of the sovereign people.
The fact of Marcos' ouster is beyond judicial review. This Court has
no power to review the legitimacy of the People Power Revolution as it was
successfully carried out by the sovereign people who installed the
revolutionary government of Corazon C. Aquino. The people have spoken
by ratifying the 1987 Constitution, which was drafted under the Aquino
government installed by the People Power Revolution. The Court has been
steadfast in dismissing challenges to the legitimacy of the Aquino
government, and has declared that its legitimacy is not a justiciable matter
that can be acted upon by the Court. 4
As the removal of Marcos from the Presidency is no longer within the

purview of judicial review, we must accept this as an incontrovertible fact
which has become part of the history of the Philippines. This ouster, which
was directly carried out by by the sovereign act of the Filipino people,
constitutes dishonorable removal from service. Marcos was forcibly
removed from the position as President and Commander-in-Chief by the
Filipino people. In Estrada v. Desierto, 5 the Court reiterated the legitimacy
of the removal of Marcos and the establishment of the Aquino government:
No less than the Freedom Constitution declared that the Aquino
government was installed through a direct exercise of the power of the
Filipino people in defiance of the provisions of the 1973 Constitution, as
amended. It is familiar learning that the legitimacy of a government sired
by a successful revolution by people power is beyond judicial scrutiny
for that government automatically orbits out of the constitutional loop. 6
(Emphasis supplied)
The removal of Marcos from the Presidency, therefore, was a direct exercise
of the sovereign act of the Filipino people that is "beyond judicial
scrutiny." It cannot be said that this removal was an "honorable" one.
Truly, there is nothing more dishonorable for a President than being forcibly
removed from office by the direct. sovereign act of the people.
Respondents argue that because Marcos was not dishonorably

discharged in accordance with the procedures and guidelines prescribed in
Administrative Discharge Prior to Expiration of Term of Enlistment
(Circular 17, dated 2 October 1987, Series of 1987, of the Armed Forces of
the Philippines), Marcos was honorably separated from service.
Joint Resolution, Lawyers' League for a Better Philippines v. President Aquino, G.R. No. 73748;
People's Crusade for the Supremacy of the Constitution v. Aquino, G.R. No. 73972; Ganay v.
Aquino, G.R. No. 73990, 22 May 1986 (unsigned Resolution).
406 Phil. I (2001).
Id. at 43-44.
v
Dissenting Opinion 5 G.RNos25973,84601~
22611 7, 226120, and 226294
I disagree.
First, Marcos was separated from service with finality, having been
forcibly ousted by the Filipino people on 25 February 1986. Circular 17,
issued more than one year after such separation from office, cannot be
made to apply retroactively to Marcos. When Circular 17 was issued,
Marcos had already been finally discharged, terminated, and ousted - as
President and Commander-in-Chief - by the Filipino people. Circular 17
requires certain administrative procedures and guidelines in the discharge of
incumbent or serving military personnel. There is a physical and legal
impossibility to apply to Marcos Circular 17 since it was issued long after
Marcos had been separated from office.
Second, even assuming that Circular 17 can be given retroactive

effect, Marcos was still dishonorably discharged from service since Circular
17 cannot prevail over the sovereign act of the Filipino people. Marcos was
ousted by the direct act of the Filipino people. The sovereign people is the
ultimate source of all government powers. 7 The Constitution specifically
declares that "sovereignty resides in the people and all government authority
emanates from them." 8 Thus, the act of the sovereign people in removing
Marcos from the Presidency, which is now beyond judicial review, and thus
necessarily beyond administrative review, cannot be overturned by a mere
administrative circular issued by a department secretary. The reality is,
more than one year before Circular 17 was issued, Marcos had already been
removed with finality from office by the sovereign people for reasons that
are far from honorable.
Circular 17, a mere administrative issuance of a department secretary,

cannot be applied retroactively to undo a final act by the sovereign people.
The power of all government officials, this Court included, emanates from
the people. Thus, any act that runs afoul with the direct exercise of
sovereignty by the people, such as the removable of a dictator, plunderer
and human rights violator, cannot be countenanced. The sovereign act of
the Filipino people obviously prevails over a mere administrative circular
issued by a department secretary.
Equal Protection Clause
The respondents assert that the disqualifications under AFPR G 161-

375 are inapplicable to former presidents as the disqualifications under
AFPR G 161-375 apply only to military personnel and not to non-military
personnel.
See Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, 239
Phil. 403 (1987).
Article II, Section I, 1987 Philippine Constitution.
~
Dissenting Opinion 6 G.R. Nos.225973,225984,226097,226116,
261~ 226120,and226294
I disagree.
The disqualifications prescribed under AFPR G 161-375 are

reasonable per se considering that the LNMB is a national shrine. 9
Proclamation No. 86 renamed the Republic Memorial Cemetery to LNMB
to make it more "symbolic of the cause for which Filipino soldiers have
died" and "to truly express the nation's esteem and reverence for her war
dead." The disqualifications are safeguards to ensure that those interred at
the LNMB indeed deserve such honor and reverence.
However, to submit to respondents' view that the disqualifications

under AFPR G 161-375 apply only to military personnel, and that the
President, even as Commander-in-Chief, is not a military personnel subject
to such disqualifications, 10 negates the purpose for which the LNMB was
originally established, which is to honor Filipino soldiers who fought for
freedom and democracy for our country. Indeed, Marcos is the very anti-
thesis of freedom and democracy because he was a dictator as declared by
this Court.
Respondents' view will discriminate against military personnel who

are subject to the disqualifications. Applying only to military personnel the
disqualifications will unduly favor non-military personnel who will always
be eligible, regardless of crimes committed against the State or humanity, to
be interred at the LNMB as long as they are included in the list of those
qualified. This will lead to the absurd situation where a military officer who
was dishonorably discharged would be disqualified, while a deposed
President who was dishonorably discharged through an act of the sovereign
people for committing plunder, human rights violations, and other atrocious
acts would still be qualified to be interred at the LNMB.
The term "personnel" is not defined anywhere in Circular 17 and thus,

we must refer to its common usage. Personnel is defined as "the people who
work for a particular company or organization." 11 The enumeration of the
people qualified to be interred at the LNMB includes both military (such as
the Generals, Flag Officers and Active and Retired Military personnel of the
AFP) and civilian (such as Presidents, Secretaries of National Defense,
Government Dignitaries, Statesmen, National Artists and widows of former
Presidents) personnel. Thus, the term "personnel" as used in the provision
for disqualifications should refer to both military and civilian personnel.
Significantly, paragraph 4 of AFPR G 161-375, the provision which
enumerates those not qualified to be interred at the LNMB, does not use the
Proclamation No. 208, issued on 28 May 1967.
JO
Consolidated Comment (of public respondents) in G.R. No. 225973, G.R. No. 225984, and G.R.
No. 226097, pp. 54-55.
II
http://www.merriam-webster.com/dictionary/personnel?
utm campaign=sd&utm medium=serp&utm source=jsonld (last accessed 14 September 2016).
W'
261~ 226120,and226294
word "military" to define personnel, while for other provisions in the

regulation, the term "military" is specifically used to classify "personnel."
If as respondents argue, the disqualifications should apply only to

military personnel, then AFPR G 161-375 would be a patent violation of the
Equal Protection Clause as it would indiscriminately create unreasonable
classifications between civilian and military personnel for purposes of
interment at the LNMB. Such classification serves no purpose and is not
germane to the purpose of interment at the LNMB. The Equal Protection
Clause enshrined in Section 1, Article III of the 1987 Constitution states
that: "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." The Equal Protection Clause applies not only to statutes or legislative
acts but to all official state actions. 12 As explained in Bureau of Customs
Employees Associations (BOCEA) v. Hon. Teves: 13
Equal protection simply provides that all persons or things similarly
situated should be treated in a similar manner, both as to rights conferred
and responsibilities imposed. The purpose of the equal protection clause is
to secure every person within a state's jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a
statute or by its improper execution through the state's duly constituted
authorities. In other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate
governmental objective. 14
To be valid, a classification must be reasonable and based on real and

substantial distinctions. The Court, in the landmark case of Victoriano v.
Elizalde Rope Workers' Union, 15 held:
All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions
which make for real differences; that it must be germane to the purpose of
the law; that it must not be limited to existing conditions only; and that it
must apply equally to each member of the class. This Court has held that
the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. 16
Thus, for a classification to be valid and compliant with the Equal Protection
Clause, it must (1) be based on substantial distinctions, (2) be germane to the
12
1-United Transport Koalisyon (J-UTAK) v. Commission on Elections, G.R. No. 206020, 14 April
2015, 755 SCRA 441; Biraogo v. The Phil. Truth Commission o/2010, 651Phil.374 (2010).
13
677 Phil. 636 (2011 ).
14
Id. at 660.
15
158 Phil. 60 (1974).
16
Id. at 87.
v
22611 7, 226120, and 226294
purpose of the law, (3) not be limited to existing conditions only, and
(4) apply equally to all members of the same class. 17
In this case, however, there is no substantial distinction between the

military and civilian personnel, for purposes of interment at the LNl\113, that
would warrant applying the disqualifications to military personnel and not to
civilian personnel.
In Central Bank Employees Association, Inc. v. Bangko Sentral ng

Pilipinas, 18 the Court found that the rank-and-file employees of the Bangko
Sentral ng Pilipinas (BSP) were unduly discriminated against when all the
rank-and-file employees of other Government Financial Institutions (GFis)
were exempted from the Salary Standardization Law (SSL) while the SSL
continued to be applied to the rank-and-file employees of the BSP. The
Court held that while the exemption from the applicability of the SSL is a
privilege that is within the prerogative of the legislature to grant, the validity
or legality of the exercise is still subject to judicial review, such that if it is
exercised capriciously and arbitrarily, the Court is duty bound to correct it.
The Court held:
It bears stressing that the exemption from the SSL is a "privilege"
fully within the legislative prerogative to give or deny. However, its
subsequent grant to the rank-and-file of the seven other GFis and
continued denial to the BSP rank-and-file employees breached the latter's
right to equal protection. In other words, while the granting of a privilege
per se is a matter of policy exclusively within the domain and prerogative
of Congress, the validity or legality of the exercise of this prerogative is
subject to judicial review. So when the distinction made is superficial, and
not based on substantial distinctions that make real differences between
those included and excluded, it becomes a matter of arbitrariness that this
Court has the duty and the power to correct. As held in the United
Kingdom case of Hooper v. Secretary of State for Work and Pensions,
once the State has chosen to confer benefits, "discrimination" contrary to
law may occur where favorable treatment already afforded to one group is
refused to another, even though the State is under no obligation to provide
that favorable treatment.
The disparity of treatment between BSP rank-and-file and the

rank-and-file of the other seven GFis definitely bears the unmistakable
badge of invidious discrimination - no one can, with candor and fairness,
deny the discriminatory character of the subsequent blanket and total
exemption of the seven other GFis from the SSL when such was withheld
from the BSP. Alikes are being treated as unalikes without any rational
basis.
Again, it must be emphasized that the equal protection clause does
not demand absolute equality but it requires that all persons shall be
treated alike, under like circumstances and conditions both as to
17
Tiu v. CA, 361 Phil. 229 (1999).
18
487 Phil. 531 (2004).
~
226117, 226120, and 226294
privileges conferred and liabilities enforced. Favoritism and undue

preference cannot be allowed. For the principle is that equal protection
and security shall be given to every person under circumstances which, if
not identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same
fashion; whatever restrictions cast on some in the group is equally binding
on the rest. 19 (Italicization in the original)
Therefore, under the Equal Protection Clause, persons who are in like
circumstances and conditions must be treated alike both as to the privileges
conferred and liabilities imposed. In this case, as those enumerated in the
AFPR G 161-375 are all granted the privilege of being interred at the
LNMB, consequently, the disqualifications must also be made applicable to
all of them. There is no substantial or reasonable basis for the
disqualifications to be made applicable to military personnel only when
civilians alike may be dishonorably dismissed from service for the same
offenses.
To sustain respondents' view would give rise to an absurd situation

where civilians, eligible to be interred at the LNMB would have the absolute
and irrevocable right to be interred there, notwithstanding that military
personnel, likewise eligible to be interred at the LNMB, may be disqualified.
There is no real or substantial basis for this distinction. The conditions for
disqualification should likewise be applied to civilian personnel as the
privileges conferred on them - interment at the LNMB - is the same
privilege conferred on military personnel.
Marcos' interment at the LNMB is contrary to public policy
Jurisprudence defines public policy as "that principle of the law which

holds that no subject or citizen can lawfully do that which has a tendency to
be injurious to the public or against the public good." 20
The Constitution grants the Legislative branch the power to enact

laws and establish the public policy behind the law. The public policy is
prescribed by the Legislature and is implemented by the Executive. The
Executive must implement the law by observing the highest standards of
promoting the public policy. These standards are embedded in the
Constitution, international law and municipal statutes. By these standards,
the DND Memorandum ordering the interment of Marcos at the LNMB is
contrary to public policy.
19
Id. at 582-583. Citations omitted.
20
Gonzalo v. Tarnate, Jr., 724 Phil. 198, 207 (2014 ), citing Avon Cosmetics, Inc. v. Luna, 540 Phil.
389, 404 (2006).
v
Dissenting Opinion 10 I
G.R. Nos.225973,225984,226097,226116,
226117, 226120, and 226294
Section 11, Article II of the 1987 Constitution provides that the State
values the dignity of every human person and guarantees full respect for
human rights. This public policy is further established in Section 12 of
Article III which prohibits the use of torture, force, violence, threat,
intimidation, or any other means which vitiate free will and mandates the
rehabilitation of victims of torture or similar practices. Also, following the
doctrine of incorporation, 21 the Philippines adheres to the Universal
Declaration of Human Rights, International Covenant on Civil and Political
Rights, and the Convention Against Torture. Through the provisions of the
Constitution and international law, the State binds itself to enact legislation
recognizing and upholding the rights of human rights victims.
Congress, by enacting Republic Act No. 10368 or "The Human Rights

Victims Reparation and Recognition Act of 2013," established as a "policy
of the State" to recognize the heroism and sacrifices of victims of
(a) summary execution; (b) torture; (c) enforced or involuntary
disappearance; and (d) other gross human rights violations during the
Marcos regime. Section 2 ofR.A. No. 10368 states:
Consistent with the foregoing, it is hereby declared the policy of the State
to recognize the heroism and sacrifices of all Filipinos who were victims of
summary execution, torture, enforced or involuntary disappearance
and other gross human rights violations committed during the regime
of former President Ferdinand E. Marcos covering the period from
September 21, 1972 to February 25, 1986 and restore the victims' honor and
dignity. The State hereby acknowledges its moral and legal obligation to
recognize and/or provide reparation to said victims and/or their
families for the deaths, injuries, sufferings, deprivations and damages they
suffered under the Marcos regime. (Emphasis supplied)
R.A. No. 10368 mandates that it is the "moral and legal obligation" of
the State to recognize the sufferings and deprivations of the human rights
victims of Marcos' martial law regime. Interring Marcos on the hallowed
grounds of the LNMB, which was established to show "the nation's esteem
and reverence" for those who fought for freedom and democracy for our
country, extols Marcos and exculpates him from human rights violations.
This starkly negates the "moral and legal obligation" of the State to
recognize the sufferings and deprivations of the human rights victims under
the dictatorship of Marcos.
The legislative declarations must be implemented by the Executive

who is sworn under the Constitution to "faithfully execute the law." The
Executive, in implementing the law, must observe the standard of
recognizing the rights of human rights victims. Marcos' interment at the
LNMB will cause undue injury particularly to human rights victims of the
21
Article II, Section 2 states: "The Philippines x x x adopts the generally accepted principles of
international law as part of the law of the land xx x."
v
226117, 226120, and 226294
Marcos regime, as well as the sovereign people who ousted Marcos during
the People Power Revolution. Marcos' interment at the LNMB is thus
contrary to public policy.
The sufferings and deprivations of the human rights victims during the
martial law era are well documented. The United States District Court of
Hawaii in In Re Estate of Marcos 22 held Marcos guilty of widespread human
rights violations and awarded one billion two hundred million U.S. Dollars
($1,200,000,000) in exemplary damages and seven hundred sixty-six million
U.S. Dollars ($766,000,000) in compensatory damages to human rights
victims. The judgment of the district court was affirmed by the Ninth Circuit
Court of Appeals in Hilao v. Estate of Marcos. 23
Finally, government funds or property shall be spent or used solely for

public purposes. 24 Since Marcos was ousted by the sovereign act of the
Filipino people, he was dishonorably discharged from office. Consequently,
Marcos' dishonorable discharge serves to convert his burial into a private
affair of the Marcos family. Hence, no public purpose is served by interring
his remains at the LNMB.
ACCORDINGLY, I vote to GRANT the petitions in G.R. Nos.

225973, 225984, 226097, 226116, 226117, 226120, and 226294 and to
DECLARE the DND Memorandum dated 7 August 2016 VOID for having
been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction.
az:: f
ANTONIO T. CARPIO
Associate Justice
22
910 F. Supp. 1460 (D. Haw. 1995).
23
103 F.3d 767 (91h Cir. 1996).
24
Fort Bonifacio Dev't. Corp. v. Commissioner ofInternal Revenue, 694 Phil. 7 (2012).
1
Republic of the Philippines

SUPREME COURT
Baguio City
EN BANC
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children,
LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT
CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria
Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando M.
Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco &
Carol Anne C. Tansingco for themselves and on behalf of their minor children, Therese Antonette C.
Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco &
Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of
their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor &
Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey C. Castor, Joseph
Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho for
themselves and on behalf of their minor children Margarita Racho, Mikaela Racho, Martin Racho, Mari
Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of
their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their minor child
Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald Juatas and Elian Gabriel
Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports, HON. CORAZON
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning
Secretary and NEDA Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its
Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES,
represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES, represented by
its President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES, represented
by its President Donato Marcos, Respondents.
x---------------------------------x
2
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Education; and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President and in
his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as
member of the school board and in his personal capacity, ROSEMARIE R. ALENTON, IMELDA G. IBARRA,
CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP,
Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A.
LUISTRO, Secretary, Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON.
SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B.
ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President, Atty.
Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes,
Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O.
Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
3
LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of Interior
and Local Government, HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. ARSENIO BALISACAN, Director-General, National Economic and Development
Authority, HON. SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine
Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE
MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL
ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and
GABRIEL DY LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the Department of Health;
HON. ARMIN A. LUISTRO, Secretary of the Department of Education; and HON. MANUELA. ROXAS II,
Secretary of the Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their
Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in
her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO
L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
LUISTRO, Secretary, Department of Education and HON. MANUEL A. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
4
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH,

DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q.
VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II,
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND
FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and
DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the Department
of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget and Management,
Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs , and to live as he believes
he ought to live, consistent with the liberty of others and with the common good." 1
To this day, poverty is still a major stumbling block to the nation's emergence as a developed country, leaving our
people beleaguered in a state of hunger, illiteracy and unemployment. While governmental policies have been
geared towards the revitalization of the economy, the bludgeoning dearth in social services remains to be a problem
that concerns not only the poor, but every member of society. The government continues to tread on a trying path to
the realization of its very purpose, that is, the general welfare of the Filipino people and the development of the
country as a whole. The legislative branch, as the main facet of a representative government, endeavors to enact
5
laws and policies that aim to remedy looming societal woes, while the executive is closed set to fully implement
these measures and bring concrete and substantial solutions within the reach of Juan dela Cruz. Seemingly distant
is the judicial branch, oftentimes regarded as an inert governmental body that merely casts its watchful eyes on
clashing stakeholders until it is called upon to adjudicate. Passive, yet reflexive when called into action, the Judiciary
then willingly embarks on its solemn duty to interpret legislation vis-a-vis the most vital and enduring principle that
holds Philippine society together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control, abortion and
contraception. As in every democratic society, diametrically opposed views on the subjects and their perceived
consequences freely circulate in various media. From television debates 2 to sticker campaigns,3 from rallies by
socio-political activists to mass gatherings organized by members of the clergy 4 - the clash between the seemingly
antithetical ideologies of the religious conservatives and progressive liberals has caused a deep division in every
level of the society. Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise
known as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by Congress
on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of society came
knocking on the doors of the Court, beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the Court now faces the iuris controversy,
as presented in fourteen (14) petitions and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and Lovely Ann C.
Imbong, in their personal capacities as citizens, lawyers and taxpayers and on behalf of their minor children;
and the Magnificat Child Leaming Center, Inc., a domestic, privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc., through its
president, Atty. Maria Concepcion S. Noche 7 and several others8 in their personal capacities as citizens and
on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and Valeriano S. Avila, in
their capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City, Inc., 11 Rosevale
Foundation, Inc.,12 a domestic, privately-owned educational institution, and several others,13 in their
capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic Xybrspace Apostolate
of the Philippines,16 in their capacities as a citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians Inc.,18 and several
others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others, 21 in their capacities as citizens and
taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition, 22 filed by spouses Francisco and Maria Fenny C. Tatad and Atty.
Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F.
Paguia is also proceeding in his capacity as a member of the Bar (Tatad);
6
(10) Petition for Certiorari and Prohibition, 23 filed by Pro-Life Philippines Foundation Inc.24 and several
others,25 in their capacities as citizens and taxpayers and on behalf of its associates who are members of
the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita
Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their capacities as citizens, taxpayers
and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several others, 29 in their
capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and several
others,31in their capacities as citizens (CFC);
(14) Petition for Prohibition 32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their capacities as
citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen and a taxpayer
(Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH Law on the
following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding its
declared policy against abortion, the implementation of the RH Law would authorize the purchase of
hormonal contraceptives, intra-uterine devices and injectables which are abortives, in violation of Section 12,
Article II of the Constitution which guarantees protection of both the life of the mother and the life of the
unborn from conception.35
• The RH Law violates the right to health and the right to protection against hazardous products. The
petitioners posit that the RH Law provides universal access to contraceptives which are hazardous to one's
health, as it causes cancer and other health problems. 36
• The RH Law violates the right to religious freedom. The petitioners contend that the RH Law violates the
constitutional guarantee respecting religion as it authorizes the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds for purposes that are believed to be contrary to
their beliefs is included in the constitutional mandate ensuring religious freedom. 37
It is also contended that the RH Law threatens conscientious objectors of criminal prosecution, imprisonment and
other forms of punishment, as it compels medical practitioners 1] to refer patients who seek advice on reproductive
health programs to other doctors; and 2] to provide full and correct information on reproductive health programs and
service, although it is against their religious beliefs and convictions. 38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-IRR),39 provides
that skilled health professionals who are public officers such as, but not limited to, Provincial, City, or Municipal
Health Officers, medical officers, medical specialists, rural health physicians, hospital staff nurses, public health
nurses, or rural health midwives, who are specifically charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex education in schools should not be
allowed as it is an affront to their religious beliefs.41
7
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue that the RH Law
fails to satisfy the "clear and present danger test" and the "compelling state interest test" to justify the regulation of
the right to free exercise of religion and the right to free speech. 42
• The RH Law violates the constitutional provision on involuntary servitude. According to the petitioners, the
RH Law subjects medical practitioners to involuntary servitude because, to be accredited under the
PhilHealth program, they are compelled to provide forty-eight (48) hours of pro bona services for indigent
women, under threat of criminal prosecution, imprisonment and other forms of punishment. 43
The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practitioner would
effectively be forced to render reproductive health services since the lack of PhilHealth accreditation would mean
that the majority of the public would no longer be able to avail of the practitioners services. 44
• The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discriminates
against the poor as it makes them the primary target of the government program that promotes
contraceptive use. The petitioners argue that, rather than promoting reproductive health among the poor, the
RH Law seeks to introduce contraceptives that would effectively reduce the number of the poor. 45
• The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In imposing
the penalty of imprisonment and/or fine for "any violation," it is vague because it does not define the type of
conduct to be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by removing from
them (the people) the right to manage their own affairs and to decide what kind of health facility they shall be and
what kind of services they shall offer." 47 It ignores the management prerogative inherent in corporations for
employers to conduct their affairs in accordance with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain a full range of family planning
methods is plainly to curtail his right to expound only his own preferred way of family planning. The
petitioners note that although exemption is granted to institutions owned and operated by religious groups,
they are still forced to refer their patients to another healthcare facility willing to perform the service or
procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is contended
that the RH Law providing for mandatory reproductive health education intrudes upon their constitutional
right to raise their children in accordance with their beliefs. 49
It is claimed that, by giving absolute authority to the person who will undergo reproductive health procedure, the RH
Law forsakes any real dialogue between the spouses and impedes the right of spouses to mutually decide on
matters pertaining to the overall well-being of their family. In the same breath, it is also claimed that the parents of a
child who has suffered a miscarriage are deprived of parental authority to determine whether their child should use
contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of legislative authority. The petitioners
question the delegation by Congress to the FDA of the power to determine whether a product is non-
abortifacient and to be included in the Emergency Drugs List (EDL). 51
• The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of the
Constitution.52
• The RH Law violates Natural Law.53

8
• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the Autonomous
Region of Muslim Mindanao {ARMM). It is contended that the RH Law, providing for reproductive health
measures at the local government level and the ARMM, infringes upon the powers devolved to LGUs and
the ARMM under the Local Government Code and R.A . No. 9054. 54
Various parties also sought and were granted leave to file their respective comments-in-intervention in defense of
the constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG) which commented on the
petitions in behalf of the respondents,55 Congressman Edcel C. Lagman,56 former officials of the Department of
Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for
Reproductive Health (C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their
respective Comments-in-Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S.
Cayetano was also granted leave to intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners, pray for the dismissal of the
petitions for the principal reasons that 1] there is no actual case or controversy and, therefore, the issues are not yet
ripe for judicial determination.; 2] some petitioners lack standing to question the RH Law; and 3] the petitions are
essentially petitions for declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo Ante Order
(SQAO), enjoining the effects and implementation of the assailed legislation for a period of one hundred and twenty
(120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine and/or
identify the pertinent issues raised by the parties and the sequence by which these issues were to be discussed in
the oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered extended until further orders of the Court. 63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days and, at the
same time posed several questions for their clarification on some contentions of the parties. 64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distribution of
contraceptive drugs and devices. As far back as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act
to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices." Although
contraceptive drugs and devices were allowed, they could not be sold, dispensed or distributed "unless such sale,
dispensation and distribution is by a duly licensed drug store or pharmaceutical company and with the prescription
of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing of
abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was provided that "no drug
or chemical product or device capable of provoking abortion or preventing conception as classified by the Food and
Drug Administration shall be delivered or sold to any person without a proper prescription by a duly licensed
physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recognized that the
population problem should be considered as the principal element for long-term economic development, enacted
9
measures that promoted male vasectomy and tubal ligation to mitigate population growth. 67 Among these measures
included R.A. No. 6365, approved on August 16, 1971, entitled "An Act Establishing a National Policy on Population,
Creating the Commission on Population and for Other Purposes. " The law envisioned that "family planning will be
made part of a broad educational program; safe and effective means will be provided to couples desiring to space or
limit family size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree. (P.D.) No.
79,68 dated December 8, 1972, which, among others, made "family planning a part of a broad educational program,"
provided "family planning services as a part of over-all health care," and made "available all acceptable methods of
contraception, except abortion, to all Filipino citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from being a
component of demographic management, to one centered on the promotion of public health, particularly,
reproductive health.69 Under that policy, the country gave priority to one's right to freely choose the method of family
planning to be adopted, in conformity with its adherence to the commitments made in the International Conference
on Population and Development.70 Thus, on August 14, 2009, the country enacted R.A. No. 9710 or "The Magna
Carta for Women, " which, among others, mandated the State to provide for comprehensive health services and
programs for women, including family planning and sex education. 71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an uncontrollable
pace. From a paltry number of just over 27 million Filipinos in 1960, the population of the country reached over 76
million in the year 2000 and over 92 million in 2010.72 The executive and the legislative, thus, felt that the measures
were still not adequate. To rein in the problem, the RH Law was enacted to provide Filipinos, especially the poor and
the marginalized, access and information to the full range of modem family planning methods, and to ensure that its
objective to provide for the peoples' right to reproductive health be achieved. To make it more effective, the RH Law
made it mandatory for health providers to provide information on the full range of modem family planning methods,
supplies and services, and for schools to provide reproductive health education. To put teeth to it, the RH Law
criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current laws on
contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI, in particular,
argues that the government sponsored contraception program, the very essence of the RH Law, violates the right to
health of women and the sanctity of life, which the State is mandated to protect and promote. Thus, ALFI prays that
"the status quo ante - the situation prior to the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided under Republic
Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives are prohibited unless dispensed
by a prescription duly licensed by a physician. What the Petitioners find deplorable and repugnant under the RH
Law is the role that the State and its agencies - the entire bureaucracy, from the cabinet secretaries down to the
barangay officials in the remotest areas of the country - is made to play in the implementation of the contraception
program to the fullest extent possible using taxpayers' money. The State then will be the funder and provider of all
forms of family planning methods and the implementer of the program by ensuring the widespread dissemination of,
and universal access to, a full range of family planning methods, devices and supplies. 74
ISSUES
10
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and refined them
to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the Court to resolve
some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to the legislative
and political wisdom of Congress and respect the compromises made in the crafting of the RH Law, it being "a
product of a majoritarian democratic process" 75 and "characterized by an inordinate amount of transparency."76 The
11
OSG posits that the authority of the Court to review social legislation like the RH Law by certiorari is "weak," since
the Constitution vests the discretion to implement the constitutional policies and positive norms with the political
departments, in particular, with Congress.77 It further asserts that in view of the Court's ruling in Southern
Hemisphere v. Anti-Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are
improper to assail the validity of the acts of the legislature. 79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the assailed law
has yet to be enforced and applied to the petitioners, and that the government has yet to distribute reproductive
health devices that are abortive. It claims that the RH Law cannot be challenged "on its face" as it is not a speech-
regulating measure.80
In many cases involving the determination of the constitutionality of the actions of the Executive and the Legislature,
it is often sought that the Court temper its exercise of judicial power and accord due respect to the wisdom of its co-
equal branch on the basis of the principle of separation of powers. To be clear, the separation of powers is a
fundamental principle in our system of government, which obtains not through express provision but by actual
division in our Constitution. Each department of the government has exclusive cognizance of matters within its
jurisdiction and is supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of the
Philippines;82 (b) the executive power shall be vested in the President of the Philippines; 83 and (c) the judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law. 84 The Constitution
has truly blocked out with deft strokes and in bold lines, the allotment of powers among the three branches of
government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which imposes
upon the courts proper restraint, born of the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as unconstitutional. Verily, the policy is a
harmonious blend of courtesy and caution.86
It has also long been observed, however, that in times of social disquietude or political instability, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. 87 In order to address this,
the Constitution impresses upon the Court to respect the acts performed by a co-equal branch done within its
sphere of competence and authority, but at the same time, allows it to cross the line of separation - but only at a
very limited and specific point - to determine whether the acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of discretion. 88 Thus, while the Court may not pass upon questions
of wisdom, justice or expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse
of discretion results.89 The Court must demonstrate its unflinching commitment to protect those cherished rights and
principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be limited, the Constitution
makes no distinction as to the kind of legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review, the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions under review. 90 This is in line with Article VIII, Section 1 of
the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
12
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
[Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition and mandamus
are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate remedy in the ordinary course of
law. This ruling was later on applied in Macalintal v. COMELEC, 92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question
thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. " Once a "controversy as to the application or interpretation of constitutional provision is
raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is essential for the
maintenance and enforcement of the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the boundaries of authority and control
between them. To him, judicial review is the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to rule on just
any and every claim of constitutional violation. Jurisprudence is replete with the rule that the power of judicial review
is limited by four exacting requisites, viz : (a) there must be an actual case or controversy; (b) the petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue
of constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or controversy because
the RH Law has yet to be implemented.97 They claim that the questions raised by the petitions are not yet concrete
and ripe for adjudication since no one has been charged with violating any of its provisions and that there is no
showing that any of the petitioners' rights has been adversely affected by its operation. 98 In short, it is contended
that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination,
not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. 99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciable-definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement of ripeness. 101 A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a
case to be considered ripe for adjudication, it is a prerequisite that something has then been accomplished or
performed by either branch before a court may come into the picture, and the petitioner must allege the existence of
an immediate or threatened injury to himself as a result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of102
13
In The Province of North Cotabato v. The Government of the Republic of the Philippines, 103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in
question, it was argued that the Court has no authority to pass upon the issues raised as there was yet no concrete
act performed that could possibly violate the petitioners' and the intervenors' rights. Citing precedents, the Court
ruled that the fact of the law or act in question being not yet effective does not negate ripeness. Concrete acts under
a law are not necessary to render the controversy ripe. Even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that the subject petitions present a justicia ble
controversy. As stated earlier, when an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the dispute. 104
Moreover, the petitioners have shown that the case is so because medical practitioners or medical providers are in
danger of being criminally prosecuted under the RH Law for vague violations thereof, particularly public health
officers who are threatened to be dismissed from the service with forfeiture of retirement and other benefits. They
must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the RH
Law cannot be challenged "on its face" as it is not a speech regulating measure. 105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that
is launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom of the press, and the right of the people to peaceably
assemble, and to petition the Government for a redress of grievances.107 After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are but component rights of the right to one's freedom of
expression, as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with
some modifications. While this Court has withheld the application of facial challenges to strictly penal statues, 108 it
has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom,
and other fundamental rights.109 The underlying reason for this modification is simple. For unlike its counterpart in
the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual
controversies involving rights which are legally demandable and enforceable, but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever
vigilant with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to
life, speech and religion and other fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred petitions and to determine if the RH Law can
indeed pass constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no actual
case or controversy, would diminish this Court as a reactive branch of government, acting only when the
Fundamental Law has been transgressed, to the detriment of the Filipino people.
Locus Standi
14
The OSG also attacks the legal personality of the petitioners to file their respective petitions. It contends that the "as
applied challenge" lodged by the petitioners cannot prosper as the assailed law has yet to be enforced and applied
against them,111 and the government has yet to distribute reproductive health devices that are abortive. 112
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their status as citizens
and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the challenged governmental act. 113 It requires a personal stake
in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the constitutionality
of a statute only if he asserts a violation of his own rights. The rule prohibits one from challenging the
constitutionality of the statute grounded on a violation of the rights of third persons not before the court. This rule is
also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be
relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of overreaching significance to society, or of
paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount importance where
serious constitutional questions are involved, the standing requirement may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party claiming the right of judicial review. In the first Emergency
Powers Cases,118 ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders although they had only an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied challenge,
still, the Court has time and again acted liberally on the locus s tandi requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or with material interest affected by a Government act, provided a
constitutional issue of transcendental importance is invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one occasion, waived or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may
not have been directly injured by the operation of a law or any other government act. As held in Jaworski v.
PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental
importance of the issues involved in this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive
influence on the social and moral well being of this nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with the well-entrenched principle that rules of procedure
are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their
strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial
justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the bench and bar,
the issues raised must be resolved for the guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and expression and other constitutional rights.
Mindful of all these and the fact that the issues of contraception and reproductive health have already caused deep
division among a broad spectrum of society, the Court entertains no doubt that the petitions raise issues of
15
transcendental importance warranting immediate court adjudication. More importantly, considering that it is the right
to life of the mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the Constitution
are being imperilled to be violated. To do so, when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief over which the
Court has no original jurisdiction.120 Suffice it to state that most of the petitions are praying for injunctive reliefs and
so the Court would just consider them as petitions for prohibition under Rule 65, over which it has original
jurisdiction. Where the case has far-reaching implications and prays for injunctive reliefs, the Court may consider
them as petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ), Article VI of
the Constitution,122 prescribing the one subject-one title rule. According to them, being one for reproductive health
with responsible parenthood, the assailed legislation violates the constitutional standards of due process by
concealing its true intent - to act as a population control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or population control measure,124 and
that the concepts of "responsible parenthood" and "reproductive health" are both interrelated as they are
inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a population control
measure. The corpus of the RH Law is geared towards the reduction of the country's population. While it claims to
save lives and keep our women and children healthy, it also promotes pregnancy-preventing products. As stated
earlier, the RH Law emphasizes the need to provide Filipinos, especially the poor and the marginalized, with access
to information on the full range of modem family planning products and methods. These family planning methods,
natural or modem, however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A large portion of
the law, however, covers the dissemination of information and provisions on access to medically-safe, non-
abortifacient, effective, legal, affordable, and quality reproductive health care services, methods, devices, and
supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades the entire RH
Law. It is, in fact, the central idea of the RH Law. 126 Indeed, remove the provisions that refer to contraception or are
related to it and the RH Law loses its very foundation. 127 As earlier explained, "the other positive provisions such as
skilled birth attendance, maternal care including pre-and post-natal services, prevention and management of
reproductive tract infections including HIV/AIDS are already provided for in the Magna Carta for Women." 128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The
Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of the
enactment language of such precision as to mirror, fully index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is comprehensive enough as to include the general object
16
which the statute seeks to effect, and where, as here, the persons interested are informed of the nature, scope and
consequences of the proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather
than technical construction of the rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive health" and
"responsible parenthood" are interrelated and germane to the overriding objective to control the population growth.
As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including their
right to equality and nondiscrimination of these rights, the right to sustainable human development, the right to
health which includes reproductive health, the right to education and information, and the right to choose and make
decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of
responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain that the
average person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents,
or which is misleading, either in referring to or indicating one subject where another or different one is really
embraced in the act, or in omitting any expression or indication of the real subject or scope of the act." 129
Considering the close intimacy between "reproductive health" and "responsible parenthood" which bears to the
attainment of the goal of achieving "sustainable human development" as stated under its terms, the Court finds no
reason to believe that Congress intentionally sought to deceive the public as to the contents of the assailed
legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life

Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child under Section
12, Article II of the Constitution. The assailed legislation allowing access to abortifacients/abortives effectively
sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law considers
contraceptives that prevent the fertilized ovum to reach and be implanted in the mother's womb as an abortifacient;
thus, sanctioning contraceptives that take effect after fertilization and prior to implantation, contrary to the intent of
the Framers of the Constitution to afford protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contraceptives,
intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and
supplies, medical research shows that contraceptives use results in abortion as they operate to kill the fertilized
ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the State sanction
of contraceptive use contravenes natural law and is an affront to the dignity of man. 132
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration (FDA) to
certify that the product or supply is not to be used as an abortifacient, the assailed legislation effectively confirms
that abortifacients are not prohibited. Also considering that the FDA is not the agency that will actually supervise or
administer the use of these products and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133
Position of the Respondents

17
For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution was simply the
prohibition of abortion. They contend that the RH Law does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive health care services, methods, devices products and supplies
shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that contraceptives are not abortifacients by
enacting the RH Law. As the RH Law was enacted with due consideration to various studies and consultations with
the World Health Organization (WHO) and other experts in the medical field, it is asserted that the Court afford
deference and respect to such a determination and pass judgment only when a particular drug or device is later on
determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's right to life is not violated
considering that various studies of the WHO show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the fertilized ovum are allowed. 136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.137
Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a
creation of, or dependent upon a particular law, custom, or belief. It precedes and transcends any authority or the
laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the Constitution
provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of recent
vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on contraceptive drugs and
devices which prevent fertilization,138 to the promotion of male vasectomy and tubal ligation, 139 and the ratification of
numerous international agreements, the country has long recognized the need to promote population control
through the use of contraceptives in order to achieve long-term economic development. Through the years,
however, the use of contraceptives and other family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly, reproductive health. 140
This has resulted in the enactment of various measures promoting women's rights and health and the overall
promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine national population program has always been grounded two
cornerstone principles: "principle of no-abortion" and the "principle of non-coercion."141 As will be discussed later,
these principles are not merely grounded on administrative policy, but rather, originates from the constitutional
protection expressly provided to afford protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a scientific and
medical issue that should not be decided, at this stage, without proper hearing and evidence. During the
deliberation, however, it was agreed upon that the individual members of the Court could express their own views
on this matter.
18
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of Section 12 which
reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable because before
conception, there is no unborn to speak of. For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen because, amazingly, there are quarters
who have conveniently disregarded the scientific fact that conception is reckoned from fertilization. They are waving
the view that life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of the female
ovum by the male sperm.142 On the other side of the spectrum are those who assert that conception refers to the
"implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in their plain and
ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and
free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. It is a well -
settled principle of constitutional construction that the language employed in the Constitution must be given their
ordinary meaning except where technical terms are employed. As much as possible, the words of the Constitution
should be understood in the sense they have in common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Verba legis non est recedendum - from the words of a statute there
should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in which
constitutional provisions are couched express the objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but essentially that of the people, in whose consciousness it should
ever be present as an important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as described and
defined by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of a viable
zygote; the fertilization that results in a new entity capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female ovum by the
male spermatozoon resulting in human life capable of survival and maturation under normal conditions. 146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufacturing
Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano, 147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die.
Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from
19
conception, that the State must protect equally with the life of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the State "has
respect for human life at all stages in the pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or cited, as a baby or a child. 149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers regarding the term
"conception" used in Section 12, Article II of the Constitution. From their deliberations, it clearly refers to the moment
of "fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that there is
human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be answered is: Is
the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself. It begins doing this upon fertilization. Secondly, as it
takes in these nutrients, it grows from within. Thirdly, it multiplies itself at a geometric rate in the continuous process
of cell division. All these processes are vital signs of life. Therefore, there is no question that biologically the
fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of conception, the
nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from the ovum combine with 23
chromosomes of the sperm to form a total of 46 chromosomes. A chromosome count of 46 is found only - and I
repeat, only in human cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both alive
and human, then, as night follows day, it must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the moment of fertilization"
was not because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with the scientific
phrase "fertilized ovum" may be beyond the comprehension of some people; we want to use the simpler phrase
"from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was discussed:
20
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution, without
specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own admission,
he would leave it to Congress to define when life begins. So, Congress can define life to begin from six months after
fertilization; and that would really be very, very, dangerous. It is now determined by science that life begins from the
moment of conception. There can be no doubt about it. So we should not give any doubt to Congress, too. 153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the questions I
was going to raise during the period of interpellations but it has been expressed already. The provision, as proposed
right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain contraceptives that
we know today are abortifacient or not because it is a fact that some of the so-called contraceptives deter the
rooting of the ovum in the uterus. If fertilization has already occurred, the next process is for the fertilized ovum to
travel towards the uterus and to take root. What happens with some contraceptives is that they stop the opportunity
for the fertilized ovum to reach the uterus. Therefore, if we take the provision as it is proposed, these so called
contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and, therefore, would be
unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based on the provision as it is now proposed, they are already
considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized that the State
shall provide equal protection to both the mother and the unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and the female ovum. It is also apparent is that the Framers of
the Constitution intended that to prohibit Congress from enacting measures that would allow it determine when life
begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives for being
unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the need to have a constitutional provision
on the right to life, recognized that the determination of whether a contraceptive device is an abortifacient is a
question of fact which should be left to the courts to decide on based on established evidence. 155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an abortive
and thus prohibited. Conversely, contraceptives that actually prevent the union of the male sperm and the female
ovum, and those that similarly take action prior to fertilization should be deemed non-abortive, and thus,
constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx

21
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would like not only
to protect the life of the unborn, but also the lives of the millions of people in the world by fighting for a nuclear-free
world. I would just like to be assured of the legal and pragmatic implications of the term "protection of the life of the
unborn from the moment of conception." I raised some of these implications this afternoon when I interjected in the
interpellation of Commissioner Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception" we are also
actually saying "no," not "maybe," to certain contraceptives which are already being encouraged at this point in time.
Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet. That is
yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-
uterine device which actually stops the egg which has already been fertilized from taking route to the uterus. So if
we say "from the moment of conception," what really occurs is that some of these contraceptives will have to be
unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by petitioners during the
oral arguments. There it was conceded that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
22
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here Section 12,
Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing, and Allied
Health Dictionary defines conception as "the beginning of pregnancy usually taken to be the instant a spermatozoon
enters an ovum and forms a viable zygote." 159
It describes fertilization as "the union of male and female gametes to form a zygote from which the embryo
develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics), 161 used by medical schools in the Philippines,
also concludes that human life (human person) begins at the moment of fertilization with the union of the egg and
the sperm resulting in the formation of a new individual, with a unique genetic composition that dictates all
developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human development begins after the union of
male and female gametes or germ cells during a process known as fertilization (conception). Fertilization is a
sequence of events that begins with the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and
ends with the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the
beginning, or primordium, of a human being." 162
The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although life is a
continuous process, fertilization is a critical landmark because, under ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The combination of 23 chromosomes present in each pronucleus
results in 46 chromosomes in the zygote. Thus the diploid number is restored and the embryonic genome is formed.
The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive Health Bill
(Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
23
The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong position that
fertilization is sacred because it is at this stage that conception, and thus human life, begins. Human lives are
sacred from the moment of conception, and that destroying those new lives is never licit, no matter what the
purported good outcome would be. In terms of biology and human embryology, a human being begins immediately
at fertilization and after that, there is no point along the continuous line of human embryogenesis where only a
"potential" human being can be posited. Any philosophical, legal, or political conclusion cannot escape this objective
scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a new human
being commences at a scientifically well defined "moment of conception." This conclusion is objective, consistent
with the factual evidence, and independent of any specific ethical, moral, political, or religious view of human life or
of human embryos.164
Conclusion: The Moment of Conception is Reckoned from

Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more importantly,
following the intention of the Framers of the Constitution, the undeniable conclusion is that a zygote is a human
organism and that the life of a new human being commences at a scientifically well-defined moment of conception,
that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life begins at
implantation.165 According to him, "fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous." 166 Citing a letter of the WHO, he wrote that "medical
authorities confirm that the implantation of the fertilized ovum is the commencement of conception and it is only after
implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not pertain to
the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it is a
living human being complete with DNA and 46 chromosomes. 168 Implantation has been conceptualized only for
convenience by those who had population control in mind. To adopt it would constitute textual infidelity not only to
the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device that would
prevent the implantation of the fetus at the uterine wall. It would be provocative and further aggravate religious-
based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn from
conception was to prevent the Legislature from enacting a measure legalizing abortion. It was so clear that even the
Court cannot interpret it otherwise. This intent of the Framers was captured in the record of the proceedings of the
1986 Constitutional Commission. Commissioner Bernardo Villegas, the principal proponent of the protection of the
unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or any pro-
abortion decision passed by the Supreme Court.169
24
A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion. While the
Court has opted not to make any determination, at this stage, when life begins, it finds that the RH Law itself clearly
mandates that protection be afforded from the moment of fertilization. As pointed out by Justice Carpio, the RH Law
is replete with provisions that embody the policy of the law to protect to the fertilized ovum and that it should be
afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code, which
penalizes the destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies that
contribute to reproductive health and well-being by addressing reproductive health-related problems. It also includes
sexual health, the purpose of which is the enhancement of life and personal relations. The elements of reproductive
health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly
whether or not to have children; the number, spacing and timing of their children; to make other decisions
concerning reproduction, free of discrimination, coercion and violence; to have the information and means to do so;
and to attain the highest standard of sexual health and reproductive health: Provided, however, That reproductive
health rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or issuance,
executive order, letter of instruction, administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby repealed,
modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear, Section 4(a) of
the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x

25
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination
of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of fertilization. By using
the word " or," the RH Law prohibits not only drugs or devices that prevent implantation, but also those that induce
abortion and those that induce the destruction of a fetus inside the mother's womb. Thus, an abortifacient is any
drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon determination of the
FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the Constitution,
recognizes that the fertilized ovum already has life and that the State has a bounden duty to protect it. The
conclusion becomes clear because the RH Law, first, prohibits any drug or device that induces abortion (first kind),
which, as discussed exhaustively above, refers to that which induces the killing or the destruction of the fertilized
ovum, and, second, prohibits any drug or device the fertilized ovum to reach and be implanted in the mother's womb
(third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be implanted in the
mother's womb is an abortifacient (third kind), the RH Law does not intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also does not declare either that protection will only be given upon
implantation, as the petitioners likewise suggest. Rather, it recognizes that: one, there is a need to protect the
fertilized ovum which already has life, and two, the fertilized ovum must be protected the moment it becomes
existent - all the way until it reaches and implants in the mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or device
from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH Law does
not sanction abortion. To repeat, it is the Court's position that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its viability is sustained but that instance of implantation is not the
point of beginning of life. It started earlier. And as defined by the RH Law, any drug or device that induces abortion,
that is, which kills or destroys the fertilized ovum or prevents the fertilized ovum to reach and be implanted in the
mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or supply included
or to be included in the EDL must have a certification from the FDA that said product and supply is made available
on the condition that it is not to be used as an abortifacient" as empty as it is absurd. The FDA, with all its expertise,
cannot fully attest that a drug or device will not all be used as an abortifacient, since the agency cannot be present
in every instance when the contraceptive product or supply will be used. 171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contraceptives, however,
the Court finds that the proviso of Section 9, as worded, should bend to the legislative intent and mean that "any
product or supply included or to be included in the EDL must have a certification from the FDA that said product and
supply is made available on the condition that it cannot be used as abortifacient." Such a construction is consistent
with the proviso under the second paragraph of the same section that provides:
26
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive
pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office when they
redefined the meaning of abortifacient. The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination
of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning method, device,
or health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized
ovum or prevent a fertilized ovum from being implanted in the mother's womb in doses of its approved indication as
determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient" only those
that primarily induce abortion or the destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed out, with the
insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed ultra vires. It
contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the way for the approval of contraceptives which may harm or destroy
the life of the unborn from conception/fertilization in violation of Article II, Section 12 of the Constitution. With such
qualification in the RH-IRR, it appears to insinuate that a contraceptive will only be considered as an "abortifacient" if
its sole known effect is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives which are
actually abortifacients because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives cannot act as
abortive. With this, together with the definition of an abortifacient under Section 4 (a) of the RH Law and its declared
policy against abortion, the undeniable conclusion is that contraceptives to be included in the PNDFS and the EDL
will not only be those contraceptives that do not have the primary action of causing abortion or the destruction of a
27
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb, but also those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that laws should be
construed in a manner that its constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the RH-IRR
should be declared void. To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would effectively "open the floodgates to the
approval of contraceptives which may harm or destroy the life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution." 175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional protection of life
must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of hormonal
contraceptives, intrauterine devices, injectables and family products and supplies in the National Drug Formulary
and the inclusion of the same in the regular purchase of essential medicines and supplies of all national
hospitals.176Citing various studies on the matter, the petitioners posit that the risk of developing breast and cervical
cancer is greatly increased in women who use oral contraceptives as compared to women who never use them.
They point out that the risk is decreased when the use of contraceptives is discontinued. Further, it is contended that
the use of combined oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual health" under Sections 4(p) 178 and (w)179 of the
RH Law, the petitioners assert that the assailed legislation only seeks to ensure that women have pleasurable and
satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being a mere
statement of the administration's principle and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of women.181
A component to the right to life is the constitutional right to health. In this regard, the Constitution is replete with
provisions protecting and promoting the right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and instill health consciousness
among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost.
There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake
appropriate health, manpower development, and research, responsive to the country's health needs and problems.
28
Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development,
and self-reliance, and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions clearly
express the contrary, the provisions of the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions.182 In Manila Prince Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate,
the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are
treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is, as
it has always been, that –
... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . . Unless
the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary
rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions
would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply
refusing to pass the needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question contraception and
contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale
and distribution of contraceptives are not prohibited when they are dispensed by a prescription of a duly licensed by
a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of R.A. No. 4729.
There is no intention at all to do away with it. It is still a good law and its requirements are still in to be complied with.
Thus, the Court agrees with the observation of respondent Lagman that the effectivity of the RH Law will not lead to
the unmitigated proliferation of contraceptives since the sale, distribution and dispensation of contraceptive drugs
and devices will still require the prescription of a licensed physician. With R.A. No. 4729 in place, there exists
adequate safeguards to ensure the public that only contraceptives that are safe are made available to the public. As
aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and used without
prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of Contraceptive
Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting
Standards of Pharmaceutical Education in the Philippines and for Other Purposes" are not repealed by the RH Law
and the provisions of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are particularly
governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute
whether for or without consideration, any contraceptive drug or device, unless such sale, dispensation or distribution
29
is by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical
practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for the
purpose of preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the female
reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished with a fine of
not more than five hundred pesos or an imprisonment of not less than six months or more than one year or both in
the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or drug of
whatever nature and kind or device shall be compounded, dispensed, sold or resold, or otherwise be made available
to the consuming public except through a prescription drugstore or hospital pharmacy, duly established in
accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the pretension
of the petitioners that the RH Law will lead to the unmitigated proliferation of contraceptives, whether harmful or not,
is completely unwarranted and baseless.186 [Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute to LGUs
and monitor the usage of family planning supplies for the whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and implement this procurement and distribution program. The supply
and budget allotments shall be based on, among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent with the
overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provisions of R.A. No.
4729, which is still in effect, and ensure that the contraceptives that it will procure shall be from a duly licensed drug
store or pharmaceutical company and that the actual dispensation of these contraceptive drugs and devices will
done following a prescription of a qualified medical practitioner. The distribution of contraceptive drugs and devices
30
must not be indiscriminately done. The public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying contraceptive
drugs and devices, for it may be held accountable for any injury, illness or loss of life resulting from or incidental to
their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA pursuant to the
RH Law. It behooves the Court to await its determination which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines available to the public are safe for public consumption.
Consequently, the Court finds that, at this point, the attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the constitutional yardstick as expounded herein, to be
determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal contraceptives and intra-
uterine devices are safe and non-abortifacient. The first sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the mandatory "shall" is to be construed as operative only after they
have been tested, evaluated, and approved by the FDA. The FDA, not Congress, has the expertise to determine
whether a particular hormonal contraceptive or intrauterine device is safe and non-abortifacient. The provision of the
third sentence concerning the requirements for the inclusion or removal of a particular family planning supply from
the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-uterine devices,
injectables, and other safe, legal, non-abortifacient and effective family planning products and supplies by the
National Drug Formulary in the EDL is not mandatory. There must first be a determination by the FDA that they are
in fact safe, legal, non-abortifacient and effective family planning products and supplies. There can be no
predetermination by Congress that the gamut of contraceptives are "safe, legal, non-abortifacient and effective"
without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by the constitutional
proscription, there are those who, because of their religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil. Some of these are medical practitioners who essentially claim
that their beliefs prohibit not only the use of contraceptives but also the willing participation and cooperation in all
things dealing with contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-giving of the spouses; it harms
true love and denies the sovereign rule of God in the transmission of Human life." 188
The petitioners question the State-sponsored procurement of contraceptives, arguing that the expenditure of their
taxes on contraceptives violates the guarantee of religious freedom since contraceptives contravene their religious
beliefs.189
2. On Religious Accommodation and

The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by making
provisions for a conscientious objector, the constitutional guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer the patient seeking reproductive health services to
another medical practitioner who would be able to provide for the patient's needs. For the petitioners, this amounts
31
to requiring the conscientious objector to cooperate with the very thing he refuses to do without violating his/her
religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is recognized, the recognition is unduly
limited, because although it allows a conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the conscientious objector in Section 23 (a)(l)
and (2), i.e. against a patient seeking reproductive health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in Section 23(b ); and c) teachers in public schools referred to
in Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to refer the matter
to another health care service provider is still considered a compulsion on those objecting healthcare service
providers. They add that compelling them to do the act against their will violates the Doctrine of Benevolent
Neutrality. Sections 9, 14 and 1 7 of the law are too secular that they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive effects, mandatory sex education, mandatory pro-bono
reproductive health services to indigents encroach upon the religious freedom of those upon whom they are
required.192
Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seeking
reproductive health care services to another provider infringes on one's freedom of religion as it forces the objector
to become an unwilling participant in the commission of a serious sin under Catholic teachings. While the right to act
on one's belief may be regulated by the State, the acts prohibited by the RH Law are passive acts which produce
neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of religious
freedom because it mentions no emergency, risk or threat that endangers state interests. It does not explain how
the rights of the people (to equality, non-discrimination of rights, sustainable human development, health, education,
information, choice and to make decisions according to religious convictions, ethics, cultural beliefs and the
demands of responsible parenthood) are being threatened or are not being met as to justify the impairment of
religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend family planning
and responsible parenthood seminars and to obtain a certificate of compliance. They claim that the provision forces
individuals to participate in the implementation of the RH Law even if it contravenes their religious beliefs.195 As the
assailed law dangles the threat of penalty of fine and/or imprisonment in case of non-compliance with its provisions,
the petitioners claim that the RH Law forcing them to provide, support and facilitate access and information to
contraception against their beliefs must be struck down as it runs afoul to the constitutional guarantee of religious
freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a specific mode or type of
contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any religion or belief. 196 They point
out that the RH Law only seeks to serve the public interest by providing accessible, effective and quality
reproductive health services to ensure maternal and child health, in line with the State's duty to bring to reality the
social justice health guarantees of the Constitution,197 and that what the law only prohibits are those acts or
practices, which deprive others of their right to reproductive health. 198 They assert that the assailed law only seeks
to guarantee informed choice, which is an assurance that no one will be compelled to violate his religion against his
free will.199
The respondents add that by asserting that only natural family planning should be allowed, the petitioners are
effectively going against the constitutional right to religious freedom, the same right they invoked to assail the
constitutionality of the RH Law.200 In other words, by seeking the declaration that the RH Law is unconstitutional, the
32
petitioners are asking that the Court recognize only the Catholic Church's sanctioned natural family planning
methods and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does not violate the constitutional guarantee
of religious freedom, it being a carefully balanced compromise between the interests of the religious objector, on
one hand, who is allowed to keep silent but is required to refer -and that of the citizen who needs access to
information and who has the right to expect that the health care professional in front of her will act professionally.
For the respondents, the concession given by the State under Section 7 and 23(a)(3) is sufficient accommodation to
the right to freely exercise one's religion without unnecessarily infringing on the rights of others. 202
Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is limited in duration,
location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a reasonable
regulation providing an opportunity for would-be couples to have access to information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is argued that those who object to any information received on
account of their attendance in the required seminars are not compelled to accept information given to them. They
are completely free to reject any information they do not agree with and retain the freedom to decide on matters of
family life without intervention of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family planning is the only method
acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys on the matter, they highlight
the changing stand of the Catholic Church on contraception throughout the years and note the general acceptance
of the benefits of contraceptives by its followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of diverse
ethnic, cultural and religious beliefs and backgrounds. History has shown us that our government, in law and in
practice, has allowed these various religious, cultural, social and racial groups to thrive in a single society together.
It has embraced minority groups and is tolerant towards all - the religious people of different sects and the non-
believers. The undisputed fact is that our people generally believe in a deity, whatever they conceived Him to be,
and to whom they call for guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the
present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society,
and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy
under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate
this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and historical experience. As this is embodied in the preamble, it
means that the State recognizes with respect the influence of religion in so far as it instills into the mind the purest
principles of morality.205 Moreover, in recognition of the contributions of religion to society, the 1935, 1973 and 1987
constitutions contain benevolent and accommodating provisions towards religions such as tax exemption of church
property, salary of religious officers in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not encroach into the affairs
of the church, and vice-versa. The principle of separation of Church and State was, thus, enshrined in Article II,
Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.

33
Verily, the principle of separation of Church and State is based on mutual respect.1âwphi1 Generally, the State
cannot meddle in the internal affairs of the church, much less question its faith and dogmas or dictate upon it. It
cannot favor one religion and discriminate against another. On the other hand, the church cannot impose its beliefs
and convictions on the State and the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if it
sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred over another, the Constitution in the
above-cited provision utilizes the term "church" in its generic sense, which refers to a temple, a mosque, an iglesia,
or any other house of God which metaphorically symbolizes a religious organization. Thus, the "Church" means the
religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the State from the
pursuit of its secular objectives, the Constitution lays down the following mandate in Article III, Section 5 and Article
VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment Clause and
the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or favoring any religion as
against other religions. It mandates a strict neutrality in affairs among religious groups." 206 Essentially, it prohibits
the establishment of a state religion and the use of public resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of the human
conscience.207 Under this part of religious freedom guarantee, the State is prohibited from unduly interfering with the
outside manifestations of one's belief and faith.208 Explaining the concept of religious freedom, the Court, in
Victoriano v. Elizalde Rope Workers Union 209 wrote:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen
form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with
the common good. Any legislation whose effect or purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being
only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct
by enacting, within its power, a general law which has for its purpose and effect to advance the state's secular
goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan
v. Maryland, 366 U.S. 420, 444-5 and 449).
34
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes. They have a single
goal-to promote freedom of individual religious beliefs and practices. In simplest terms, the free exercise clause
prohibits government from inhibiting religious beliefs with penalties for religious beliefs and practice, while the
establishment clause prohibits government from inhibiting religious belief with rewards for religious beliefs and
practices. In other words, the two religion clauses were intended to deny government the power to use either the
carrot or the stick to influence individual religious beliefs and practices. 210
Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of religious freedom is
comprised of two parts: the freedom to believe, and the freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the
freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the
scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is
quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome power of the State and can be enjoyed only with
proper regard to the rights of others. It is "subject to regulation where the belief is translated into external acts that
affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the doctrine of
benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor, (Escritor)214 where it was
stated "that benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent and
framework underlying the Philippine Constitution." 215 In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of
religion may be allowed, not to promote the government's favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. "The purpose of accommodation is to remove a burden on, or
facilitate the exercise of, a person's or institution's religion." 216 "What is sought under the theory of accommodation
is not a declaration of unconstitutionality of a facially neutral law, but an exemption from its application or its
'burdensome effect,' whether by the legislature or the courts." 217
In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a fundamental right and that
laws burdening it should be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case
then pronounced that the test of permissibility of religious freedom is whether it violates the established institutions
of society and law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the " clear and present
danger" test in the maiden case of A merican Bible Society. Not surprisingly, all the cases which employed the
35
"clear and present danger" or "grave and immediate danger" test involved, in one form or another, religious speech
as this test is often used in cases on freedom of expression. On the other hand, the Gerona and German cases set
the rule that religious freedom will not prevail over established institutions of society and law. Gerona, however,
which was the authority cited by German has been overruled by Ebralinag which employed the "grave and
immediate danger" test . Victoriano was the only case that employed the "compelling state interest" test, but as
explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo where the
"clear and present danger" and "grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The "compelling state interest" test is proper
where conduct is involved for the whole gamut of human conduct has different effects on the state's interests: some
effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the
interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an
appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a
just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a
colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over
the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to
do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty, reasonableness shall be the guide.
The "compelling state interest" serves the purpose of revering religious liberty while at the same time affording
protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests of
the state, seeks to protect the very state, without which, religious liberty will not be preserved. [Emphases in the
original. Underlining supplied.]
In the case at bench, it is not within the province of the Court to determine whether the use of contraceptives or
one's participation in the support of modem reproductive health measures is moral from a religious standpoint or
whether the same is right or wrong according to one's dogma or belief. For the Court has declared that matters
dealing with "faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside the province of the civil courts." 220 The jurisdiction of the
Court extends only to public and secular morality. Whatever pronouncement the Court makes in the case at bench
should be understood only in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to determine
whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and convictions. It is
replete with assurances the no one can be compelled to violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood. [Section 2, Declaration of Policy]
36
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family which in turn is
the foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of family planning,
including effective natural and modern methods which have been proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based medical research standards such as those registered
and approved by the FDA for the poor and marginalized as identified through the NHTS-PR and other government
measures of identifying marginalization: Provided, That the State shall also provide funding support to promote
modern natural methods of family planning, especially the Billings Ovulation Method, consistent with the needs of
acceptors and their religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of children they
desire with due consideration to the health, particularly of women, and the resources available and affordable to
them and in accordance with existing laws, public morals and their religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in accordance
with their religious convictions and cultural beliefs, taking into consideration the State's obligations under various
human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations, civil society,
faith-based organizations, the religious sector and communities is crucial to ensure that reproductive health and
population and development policies, plans, and programs will address the priority needs of women, the poor, and
the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and aspirations of the
family and children. It is likewise a shared responsibility between parents to determine and achieve the desired
number of children, spacing and timing of their children according to their own family life aspirations, taking into
account psychological preparedness, health status, sociocultural and economic concerns consistent with their
religious convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To some medical
practitioners, however, the whole idea of using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion, it also limits
what religious sects can or cannot do with the government. They can neither cause the government to adopt their
particular doctrines as policy for everyone, nor can they not cause the government to restrict other groups. To do so,
in simple terms, would cause the State to adhere to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its population control
program through the RH Law simply because the promotion of contraceptive use is contrary to their religious beliefs.
Indeed, the State is not precluded to pursue its legitimate secular objectives without being dictated upon by the
policies of any one religion. One cannot refuse to pay his taxes simply because it will cloud his conscience. The
demarcation line between Church and State demands that one render unto Caesar the things that are Caesar's and
unto God the things that are God's.221
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The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly respects diverse religious
beliefs in line with the Non-Establishment Clause, the same conclusion cannot be reached with respect to Sections
7, 23 and 24 thereof. The said provisions commonly mandate that a hospital or a medical practitioner to immediately
refer a person seeking health care and services under the law to another accessible healthcare provider despite
their conscientious objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or practice, the
compelling state interest test in line with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor,
finds application. In this case, the conscientious objector's claim to religious freedom would warrant an exemption
from obligations under the RH Law, unless the government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective. Necessarily so, the plea of conscientious objectors
for exemption from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom has been
burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious objector. One side
coaxes him into obedience to the law and the abandonment of his religious beliefs, while the other entices him to a
clean conscience yet under the pain of penalty. The scenario is an illustration of the predicament of medical
practitioners whose religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief and
conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient seeking
information on modem reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his beliefs. As Commissioner Joaquin A.
Bernas (Commissioner Bernas) has written, "at the basis of the free exercise clause is the respect for the
inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise because it
makes pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive.
They cannot, in conscience, do indirectly what they cannot do directly. One may not be the principal, but he is
equally guilty if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it being an
externalization of one's thought and conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded to individuals in communicating their
beliefs to others as well as the protection for simply being silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty not to utter what is not in his mind. 223 While the RH Law seeks to
provide freedom of choice through informed consent, freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of
the State, on the other, to provide access and information on reproductive health products, services, procedures and
methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is
of the strong view that the religious freedom of health providers, whether public or private, should be accorded
primacy. Accordingly, a conscientious objector should be exempt from compliance with the mandates of the RH
Law. If he would be compelled to act contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of Doogan and
Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to be conscientious objectors
under the provisions of Scotland's Abortion Act of 1967, could not be required to delegate, supervise or support staff
on their labor ward who were involved in abortions.226 The Inner House stated "that if 'participation' were defined
38
according to whether the person was taking part 'directly' or ' indirectly' this would actually mean more complexity
and uncertainty."227
While the said case did not cover the act of referral, the applicable principle was the same - they could not be forced
to assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned and operated by a
religious group and health care service providers. Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their duty to refer under Section 7 and Section 23(a)(3), the
Court deems that it must be struck down for being violative of the freedom of religion. The same applies to Section
23(a)(l) and (a)(2) in relation to Section 24, considering that in the dissemination of information regarding programs
and services and in the performance of reproductive health procedures, the religious freedom of health care service
providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary 228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes
he ought to live, consistent with the liberty of others and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour to ensure compliance. Without set
consequences for either an active violation or mere inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective implementation of a law is a constitutionally-protected right the
Court firmly chooses to stamp its disapproval. The punishment of a healthcare service provider, who fails and/or
refuses to refer a patient to another, or who declines to perform reproductive health procedure on a patient because
incompatible religious beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of hospital,
head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty
to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection clause should be
equally protective of the religious belief of public health officers. There is no perceptible distinction why they should
not be considered exempt from the mandates of the law. The protection accorded to other conscientious objectors
should equally apply to all medical practitioners without distinction whether they belong to the public or private
sector. After all, the freedom to believe is intrinsic in every individual and the protective robe that guarantees its free
exercise is not taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of human values. The
mind must be free to think what it wills, whether in the secular or religious sphere, to give expression to its beliefs by
oral discourse or through the media and, thus, seek other candid views in occasions or gatherings or in more
permanent aggrupation. Embraced in such concept then are freedom of religion, freedom of speech, of the press,
assembly and petition, and freedom of association.229
39
The discriminatory provision is void not only because no such exception is stated in the RH Law itself but also
because it is violative of the equal protection clause in the Constitution. Quoting respondent Lagman, if there is any
conflict between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned RH Law is
replete with provisions in upholding the freedom of religion and respecting religious convictions. Earlier, you affirmed
this with qualifications. Now, you have read, I presumed you have read the IRR-Implementing Rules and
Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected the nuances of
the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it says: " .... skilled
health professionals such as provincial, city or municipal health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors." Do you agree with
this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be conscientious objectors,
skilled health professionals cannot be considered conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail. 230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense of the subject
provisions, were able to: 1] demonstrate a more compelling state interest to restrain conscientious objectors in their
choice of services to render; and 2] discharge the burden of proof that the obligatory character of the law is the least
intrusive means to achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was curiously silent
in the establishment of a more compelling state interest that would rationalize the curbing of a conscientious
objector's right not to adhere to an action contrary to his religious convictions. During the oral arguments, the OSG
maintained the same silence and evasion. The Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
40
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in imposing this
duty to refer to a conscientious objector which refuses to do so because of his religious belief?
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is an ordinary
health legislation involving professionals. This is not a free speech matter or a pure free exercise matter. This is a
regulation by the State of the relationship between medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the
conscientious objectors, however few in number. Only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the infringement of religious freedom. If the government fails to
show the seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act
according to what one believes. And this freedom is violated when one is compelled to act against one's belief or is
prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an individual in the perceived
scenario of the subject provisions. After all, a couple who plans the timing, number and spacing of the birth of their
children refers to a future event that is contingent on whether or not the mother decides to adopt or use the
information, product, method or supply given to her or whether she even decides to become pregnant at all. On the
other hand, the burden placed upon those who object to contraceptive use is immediate and occurs the moment a
patient seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious objector's
religious freedom, the respondents have failed to demonstrate "the gravest abuses, endangering paramount
interests" which could limit or override a person's fundamental right to religious freedom. Also, the respondents have
not presented any government effort exerted to show that the means it takes to achieve its legitimate state objective
is the least intrusive means.234 Other than the assertion that the act of referring would only be momentary,
considering that the act of referral by a conscientious objector is the very action being contested as violative of
religious freedom, it behooves the respondents to demonstrate that no other means can be undertaken by the State
to achieve its objective without violating the rights of the conscientious objector. The health concerns of women may
still be addressed by other practitioners who may perform reproductive health-related procedures with open
willingness and motivation. Suffice it to say, a person who is forced to perform an act in utter reluctance deserves
the protection of the Court as the last vanguard of constitutional freedoms.
41
At any rate, there are other secular steps already taken by the Legislature to ensure that the right to health is
protected. Considering other legislations as they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365
or "The Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of Women,"
amply cater to the needs of women in relation to health services and programs. The pertinent provision of Magna
Carta on comprehensive health services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all times, provide
for a comprehensive, culture-sensitive, and gender-responsive health services and programs covering all stages of
a woman's life cycle and which addresses the major causes of women's mortality and morbidity: Provided, That in
the provision for comprehensive health services, due respect shall be accorded to women's religious convictions,
the rights of the spouses to found a family in accordance with their religious convictions, and the demands of
responsible parenthood, and the right of women to protection from hazardous drugs, devices, interventions, and
substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and infant health and
nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services without prejudice
to the primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually transmitted
diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical cancers, and
other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims and survivors shall
be provided with comprehensive health services that include psychosocial, therapeutic, medical, and
legal interventions and assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical norms and
medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women and girls. In
addition, healthy lifestyle activities are encouraged and promoted through programs and projects as
strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors with
appropriate, timely, complete, and accurate information and education on all the above-stated aspects of women's
health in government education and training programs, with due regard to the following:
42
(1) The natural and primary right and duty of parents in the rearing of the youth and the development
of moral character and the right of children to be brought up in an atmosphere of morality and
rectitude for the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest was "Fifteen
maternal deaths per day, hundreds of thousands of unintended pregnancies, lives changed, x x x." 235 He, however,
failed to substantiate this point by concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino maternal mortality rate
dropped to 48 percent from 1990 to 2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for Filipino women,
they could not be solved by a measure that puts an unwarrantable stranglehold on religious beliefs in exchange for
blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While generally
healthcare service providers cannot be forced to render reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be made in life-threatening cases that require the performance
of emergency procedures. In these situations, the right to life of the mother should be given preference, considering
that a referral by a medical practitioner would amount to a denial of service, resulting to unnecessarily placing the
life of a mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested: "the
forced referral clause that we are objecting on grounds of violation of freedom of religion does not contemplate an
emergency."237
In a conflict situation between the life of the mother and the life of a child, the doctor is morally obliged always to try
to save both lives. If, however, it is impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the mother of the child
is never justified to bring about a "good" effect. In a conflict situation between the life of the child and the life of the
mother, the doctor is morally obliged always to try to save both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to save both, provided that no direct harm is intended to the
other. If the above principles are observed, the loss of the child's life or the mother's life is not intentional and,
therefore, unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable. 238
Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the child may be
resorted to even if is against the religious sentiments of the medical practitioner. As quoted above, whatever burden
imposed upon a medical practitioner in this case would have been more than justified considering the life he would
be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15 239 as a condition for the issuance of a marriage license, the Court
finds the same to be a reasonable exercise of police power by the government. A cursory reading of the assailed
43
provision bares that the religious freedom of the petitioners is not at all violated. All the law requires is for would-be
spouses to attend a seminar on parenthood, family planning breastfeeding and infant nutrition. It does not even
mandate the type of family planning methods to be included in the seminar, whether they be natural or artificial. As
correctly noted by the OSG, those who receive any information during their attendance in the required seminars are
not compelled to accept the information given to them, are completely free to reject the information they find
unacceptable, and retain the freedom to decide on matters of family life without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the Constitution
by intruding into marital privacy and autonomy. It argues that it cultivates disunity and fosters animosity in the family
rather than promote its solidarity and total development. 240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic social institution. In fact,
one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the
State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the demands of responsible
parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of policies and
programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions which tend to
wreck the family as a solid social institution. It bars the husband and/or the father from participating in the decision
making process regarding their common future progeny. It likewise deprives the parents of their authority over their
minor daughter simply because she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
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(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the
ground of lack of consent or authorization of the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision of the one
undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy which, by their very
nature, should require mutual consent and decision between the husband and the wife as they affect issues
intimately related to the founding of a family. Section 3, Art. XV of the Constitution espouses that the State shall
defend the "right of the spouses to found a family." One person cannot found a family. The right, therefore, is shared
by both spouses. In the same Section 3, their right "to participate in the planning and implementation of policies and
programs that affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority to the
spouse who would undergo a procedure, and barring the other spouse from participating in the decision would drive
a wedge between the husband and wife, possibly result in bitter animosity, and endanger the marriage and the
family, all for the sake of reducing the population. This would be a marked departure from the policy of the State to
protect marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter which belongs to the couple, not just
one of them. Any decision they would reach would affect their future as a family because the size of the family or the
number of their children significantly matters. The decision whether or not to undergo the procedure belongs
exclusively to, and shared by, both spouses as one cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it prejudices the State, which has not shown any compelling
interest, the State should see to it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as the "Magna
Carta for Women," provides that women shall have equal rights in all matters relating to marriage and family
relations, including the joint decision on the number and spacing of their children. Indeed, responsible parenthood,
as Section 3(v) of the RH Law states, is a shared responsibility between parents. Section 23(a)(2)(i) of the RH Law
should not be allowed to betray the constitutional mandate to protect and strengthen the family by giving to only one
spouse the absolute authority to decide whether to undergo reproductive health procedure. 242
The right to chart their own destiny together falls within the protected zone of marital privacy and such state
intervention would encroach into the zones of spousal privacy guaranteed by the Constitution. In our jurisdiction, the
right to privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking through Chief Justice Fernando,
held that "the right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it
is fully deserving of constitutional protection." 244 Marje adopted the ruling of the US Supreme Court in Griswold v.
Connecticut,245 where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than our school
system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of
being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in
our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the
ground of its amounting to an unconstitutional invasion of the right to privacy of married persons. Nevertheless, it
recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in Grisworld wrote that "specific
guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them
life and substance. Various guarantees create zones of privacy." 246
At any rate, in case of conflict between the couple, the courts will decide.
45
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be undergoing a
procedure, is already a parent or has had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services, whether natural or artificial: Provided,
That minors will not be allowed access to modern methods of family planning without written consent from their
parents or guardian/s except when the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent or has had a
miscarriage, the parents are excluded from the decision making process of the minor with regard to family planning.
Even if she is not yet emancipated, the parental authority is already cut off just because there is a need to tame
population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance of her own
parents. The State cannot replace her natural mother and father when it comes to providing her needs and comfort.
To say that their consent is no longer relevant is clearly anti-family. It does not promote unity in the family. It is an
affront to the constitutional mandate to protect and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary right and duty
of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the
support of the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the assertion that the
right of parents is superior to that of the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child or the
right of the spouses to mutually decide on matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's privacy with respect to his family. It
would be dismissive of the unique and strongly-held Filipino tradition of maintaining close family ties and violative of
the recognition that the State affords couples entering into the special contract of marriage to as one unit in forming
the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the care and custody of a
minor child, whether or not the latter is already a parent or has had a miscarriage. Only a compelling state interest
can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph of Section 7 or
with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services, on one hand, and access to the
reproductive health procedures and modern family planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection to the acquisition of information by the minor
referred to under the exception in the second paragraph of Section 7 that would enable her to take proper care of
her own body and that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to enable a person to
make informed decisions is essential in the protection and maintenance of ones' health, access to such information
with respect to reproductive health must be allowed. In this situation, the fear that parents might be deprived of their
parental control is unfounded because they are not prohibited to exercise parental guidance and control over their
minor child and assist her in deciding whether to accept or reject the information received.
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Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening cases that require the
performance of emergency procedures. In such cases, the life of the minor who has already suffered a miscarriage
and that of the spouse should not be put at grave risk simply for lack of consent. It should be emphasized that no
person should be denied the appropriate medical care urgently needed to preserve the primordial right, that is, the
right to life.
In this connection, the second sentence of Section 23(a)(2)(ii) 249 should be struck down. By effectively limiting the
requirement of parental consent to "only in elective surgical procedures," it denies the parents their right of parental
authority in cases where what is involved are "non-surgical procedures." Save for the two exceptions discussed
above, and in the case of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the parents should
not be deprived of their constitutional right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teaching of Age-and
Development-Appropriate Reproductive Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these provisions effectively force educational
institutions to teach reproductive health education even if they believe that the same is not suitable to be taught to
their students.250 Citing various studies conducted in the United States and statistical data gathered in the country,
the petitioners aver that the prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce
and breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the aging of
society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is premature because the
Department of Education, Culture and Sports has yet to formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content, manner and medium of instruction that will be used to
educate the adolescents and whether they will contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and development of moral character shall receive the support
of the Government. Like the 1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms the State
recognition of the invaluable role of parents in preparing the youth to become productive members of society.
Notably, it places more importance on the role of parents in the development of their children by recognizing that
said role shall be "primary," that is, that the right of parents in upbringing the youth is superior to that of the State. 252
It is also the inherent right of the State to act as parens patriae to aid parents in the moral development of the youth.
Indeed, the Constitution makes mention of the importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-appropriate-reproductive health education, but
also for values formation; the development of knowledge and skills in self-protection against discrimination; sexual
abuse and violence against women and children and other forms of gender based violence and teen pregnancy;
physical, social and emotional changes in adolescents; women's rights and children's rights; responsible teenage
behavior; gender and development; and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR
and Section 4(t) of the RH Law itself provides for the teaching of responsible teenage behavior, gender sensitivity
and physical and emotional changes among adolescents - the Court finds that the legal mandate provided under the
assailed provision supplements, rather than supplants, the rights and duties of the parents in the moral development
of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health education program shall be
developed in conjunction with parent-teacher-community associations, school officials and other interest groups, it
47
could very well be said that it will be in line with the religious beliefs of the petitioners. By imposing such a condition,
it becomes apparent that the petitioners' contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection to their participation in the
reproductive health education program provided under Section 14 of the RH Law on the ground that the same
violates their religious beliefs, the Court reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process clause of the
Constitution. According to them, Section 23 (a)(l) mentions a "private health service provider" among those who may
be held punishable but does not define who is a "private health care service provider." They argue that confusion
further results since Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by religious
groups from rendering reproductive health service and modern family planning methods. It is unclear, however, if
these institutions are also exempt from giving reproductive health information under Section 23(a)(l), or from
rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect information, but
at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ as to its application. It is repugnant to the Constitution in
two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice
of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.255 Moreover, in determining whether the words used in a
statute are vague, words must not only be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be interpreted with reference to the context,
that is, every part of it must be construed together with the other parts and kept subservient to the general intent of
the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care service provider," reference must
be made to Section 4(n) of the RH Law which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed and
accredited and devoted primarily to the maintenance and operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals suffering from illness, disease, injury, disability or deformity,
or in need of obstetrical or other medical and nursing care; (2) public health care professional, who is a doctor of
medicine, a nurse or a midvvife; (3) public health worker engaged in the delivery of health care services; or (4)
barangay health worker who has undergone training programs under any accredited government and NGO and who
voluntarily renders primarily health care services in the community after having been accredited to function as such
by the local health board in accordance with the guidelines promulgated by the Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private health care
service provider," should not be a cause of confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being obligated to render reproductive
health service and modem family planning methods, includes exemption from being obligated to give reproductive
health information and to render reproductive health procedures. Clearly, subject to the qualifications and
48
exemptions earlier discussed, the right to be exempt from being obligated to render reproductive health service and
modem family planning methods, necessarily includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The terms "service" and "methods" are broad enough to
include the providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care service providers who
intentionally withhold, restrict and provide incorrect information regarding reproductive health programs and
services. For ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide incorrect
information regarding programs and services on reproductive health including the right to informed choice and
access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or with established
rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or propriety; and failing to coincide
with the truth. 257 On the other hand, the word "knowingly" means with awareness or deliberateness that is
intentional.258 Used together in relation to Section 23(a)(l), they connote a sense of malice and ill motive to mislead
or misrepresent the public as to the nature and effect of programs and services on reproductive health. Public health
and safety demand that health care service providers give their honest and correct medical information in
accordance with what is acceptable in medical practice. While health care service providers are not barred from
expressing their own personal opinions regarding the programs and services on reproductive health, their right must
be tempered with the need to provide public health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the Constitution as it
discriminates against the poor because it makes them the primary target of the government program that promotes
contraceptive use . They argue that, rather than promoting reproductive health among the poor, the RH Law
introduces contraceptives that would effectively reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those mentioned in the guiding principles 259 and definition
of terms260 of the law.
They add that the exclusion of private educational institutions from the mandatory reproductive health education
program imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept of equal
protection. Thus:
One of the basic principles on which this government was founded is that of the equality of right which is embodied
in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The purpose of the equal protection clause is to
49
secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned
by the express terms of a statue or by its improper execution through the state's duly constituted authorities." "In
other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover
all the departments of the government including the political and executive departments, and extend to all actions of
a state denying equal protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without distinction. What it
simply requires is equality among equals as determined according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane
to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of
the same class. "Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all persons who
naturally belong to the class. "The classification will be regarded as invalid if all the members of the class are not
similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be
made with absolute symmetry, in the sense that the members of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the
classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other
members, as long as that class is substantially distinguishable from all others, does not justify the non-application of
the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the
number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain
classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care program is not a
violation of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which
recognizes the distinct necessity to address the needs of the underprivileged by providing that they be given priority
in addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost.
There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from
fertility issues and desire to have children. There is, therefore, no merit to the contention that the RH Law only seeks
to target the poor to reduce their number. While the RH Law admits the use of contraceptives, it does not, as
elucidated above, sanction abortion. As Section 3(1) explains, the "promotion and/or stabilization of the population
growth rate is incidental to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not impose
conditions upon couples who intend to have children. While the petitioners surmise that the assailed law seeks to
charge couples with the duty to have children only if they would raise them in a truly humane way, a deeper look into
its provisions shows that what the law seeks to do is to simply provide priority to the poor in the implementation of
government programs to promote basic reproductive health care.
50
With respect to the exclusion of private educational institutions from the mandatory reproductive health education
program under Section 14, suffice it to state that the mere fact that the children of those who are less fortunate
attend public educational institutions does not amount to substantial distinction sufficient to annul the assailed
provision. On the other hand, substantial distinction rests between public educational institutions and private
educational institutions, particularly because there is a need to recognize the academic freedom of private
educational institutions especially with respect to religious instruction and to consider their sensitivity towards the
teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional prohibition against
involuntary servitude. They posit that Section 17 of the assailed legislation requiring private and non-government
health care service providers to render forty-eight (48) hours of pro bono reproductive health services, actually
amounts to involuntary servitude because it requires medical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be considered as
forced labor analogous to slavery, as reproductive health care service providers have the discretion as to the
manner and time of giving pro bono services. Moreover, the OSG points out that the imposition is within the powers
of the government, the accreditation of medical practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest that it is both a
power and a duty of the State to control and regulate it in order to protect and promote the public welfare. Like the
legal profession, the practice of medicine is not a right but a privileged burdened with conditions as it directly
involves the very lives of the people. A fortiori, this power includes the power of Congress263 to prescribe the
qualifications for the practice of professions or trades which affect the public welfare, the public health, the public
morals, and the public safety; and to regulate or control such professions or trades, even to the point of revoking
such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of force, threats,
intimidation or other similar means of coercion and compulsion. 265 A reading of the assailed provision, however,
reveals that it only encourages private and non- government reproductive healthcare service providers to render pro
bono service. Other than non-accreditation with PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive healthcare service providers also enjoy the liberty to choose
which kind of health service they wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono service against their will.
While the rendering of such service was made a prerequisite to accreditation with PhilHealth, the Court does not
consider the same to be an unreasonable burden, but rather, a necessary incentive imposed by Congress in the
furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that conscientious
objectors are exempt from this provision as long as their religious beliefs and convictions do not allow them to
render reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to determine whether or not a
supply or product is to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the power but also the competency
to evaluate, register and cover health services and methods. It is the only government entity empowered to render
51
such services and highly proficient to do so. It should be understood that health services and methods fall under the
gamut of terms that are associated with what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the Office of the
Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant
to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products standards, and to
recommend standards of identity, purity, safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance with regulations regarding operation of
manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and other establishments and
facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate
authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers,
consumers, and non-consumer users of health products to report to the FDA any incident that reasonably
indicates that said product has caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health products, whether or
not registered with the FDA Provided, That for registered health products, the cease and desist order is valid
for thirty (30) days and may be extended for sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have
caused death, serious illness or serious injury to a consumer or patient, or is found to be imminently
injurious, unsafe, dangerous, or grossly deceptive, and to require all concerned to implement the risk
management plan which is a requirement for the issuance of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to enable the agency to
carry out the mandates of the law. Being the country's premiere and sole agency that ensures the safety of food and
medicines available to the public, the FDA was equipped with the necessary powers and functions to make it
effective. Pursuant to the principle of necessary implication, the mandate by Congress to the FDA to ensure public
health and safety by permitting only food and medicines that are safe includes "service" and "methods." From the
declared policy of the RH Law, it is clear that Congress intended that the public be given only those medicines that
are proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-based
52
medical research standards. The philosophy behind the permitted delegation was explained in Echagaray v.
Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the growing inability of the legislature to
cope directly with the many problems demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To many of the problems attendant upon present day
undertakings, the legislature may not have the competence, let alone the interest and the time, to provide the
required direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the powers devolved
to local government units (LGUs) under Section 17 of the Local Government Code. Said Section 17 vested upon the
LGUs the duties and functions pertaining to the delivery of basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall also discharge the functions
and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local
government units shall likewise exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic
services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and responsibilities that have
already been devolved upon them from the national agencies on the aspect of providing for basic services
and facilities in their respective jurisdictions, paragraph (c) of the same provision provides a categorical
exception of cases involving nationally-funded projects, facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure projects and
other facilities, programs and services funded by the National Government under the annual General
Appropriations Act, other special laws, pertinent executive orders, and those wholly or partially funded from
foreign sources, are not covered under this Section, except in those cases where the local government unit
concerned is duly designated as the implementing agency for such projects, facilities, programs and
services. [Emphases supplied]
The essence of this express reservation of power by the national government is that, unless an LGU is particularly
designated as the implementing agency, it has no power over a program for which funding has been provided by the
national government under the annual general appropriations act, even if the program involves the delivery of basic
services within the jurisdiction of the LGU.269 A complete relinquishment of central government powers on the matter
of providing basic facilities and services cannot be implied as the Local Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of health care
facilities,271 the hiring of skilled health professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation. Local autonomy is not absolute. The
national government still has the say when it comes to national priority programs which the local government is
called upon to implement like the RH Law.
53
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these services. There
is nothing in the wording of the law which can be construed as making the availability of these services mandatory
for the LGUs. For said reason, it cannot be said that the RH Law amounts to an undue encroachment by the
national government upon the autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally applied to the
ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No.
9054, or the organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption of the operation of the
RH Law in the autonomous region, refer to the policy statements for the guidance of the regional government.
These provisions relied upon by the petitioners simply delineate the powers that may be exercised by the regional
government, which can, in no manner, be characterized as an abdication by the State of its power to enact
legislation that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM, the
Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio in the
relationship between the national and the regional governments. 274 Except for the express and implied limitations
imposed on it by the Constitution, Congress cannot be restricted to exercise its inherent and plenary power to
legislate on all subjects which extends to all matters of general concern or common interest. 275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court does not duly
recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution. While every
law enacted by man emanated from what is perceived as natural law, the Court is not obliged to see if a statute,
executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and notions on inherent rights espoused by theorists, philosophers
and theologists. The jurists of the philosophical school are interested in the law as an abstraction, rather than in the
actual law of the past or present.277 Unless, a natural right has been transformed into a written law, it cannot serve
as a basis to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the petitioners, it was
explained that the Court is not duty-bound to examine every law or action and whether it conforms with both the
Constitution and natural law. Rather, natural law is to be used sparingly only in the most peculiar of circumstances
involving rights inherent to man where no law is applicable. 279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not allow abortion in
any shape or form. It only seeks to enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access to medically-
safe, non-abortifacient, effective, legal, affordable, and quality reproductive healthcare services, methods, devices,
and supplies. As earlier pointed out, however, the religious freedom of some sectors of society cannot be trampled
upon in pursuit of what the law hopes to achieve. After all, the Constitutional safeguard to religious freedom is a
recognition that man stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be allowed to impose
its beliefs on the rest of the society. Philippine modem society leaves enough room for diversity and pluralism. As
such, everyone should be tolerant and open-minded so that peace and harmony may continue to reign as we exist
alongside each other.
54
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks to
address is the problem of rising poverty and unemployment in the country. Let it be said that the cause of these
perennial issues is not the large population but the unequal distribution of wealth. Even if population growth is
controlled, poverty will remain as long as the country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The European and Asian
countries, which embarked on such a program generations ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse effects on their economy. These young workers represent
a significant human capital which could have helped them invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but they are still struggling. For one, Singapore, even with
incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino Workers. This is
because we have an ample supply of young able-bodied workers. What would happen if the country would be
weighed down by an ageing population and the fewer younger generation would not be able to support them? This
would be the situation when our total fertility rate would go down below the replacement level of two (2) children per
woman.280
Indeed, at the present, the country has a population problem, but the State should not use coercive measures (like
the penal provisions of the RH Law against conscientious objectors) to solve it. Nonetheless, the policy of the Court
is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the law is as
enacted by the lawmaking body. That is not the same as saying what the law should be or what is the correct rule in
a given set of circumstances. It is not the province of the judiciary to look into the wisdom of the law nor to question
the policies adopted by the legislative branch. Nor is it the business of this Tribunal to remedy every unjust situation
that may arise from the application of a particular law. It is for the legislature to enact remedial legislation if that
would be necessary in the premises. But as always, with apt judicial caution and cold neutrality, the Court must
carry out the delicate function of interpreting the law, guided by the Constitution and existing legislation and mindful
of settled jurisprudence. The Court's function is therefore limited, and accordingly, must confine itself to the judicial
task of saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with coercive measures. Even if the Court decrees the RH Law as
entirely unconstitutional, there will still be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No. 4729)
and the reproductive health for women or The Magna Carta of Women (R.A. No. 9710), sans the coercive
provisions of the assailed legislation. All the same, the principle of "no-abortion" and "non-coercion" in the adoption
of any family planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health
facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to
refer patients, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
another health facility which is conveniently accessible; and b) allow minor-parents or minors who have
suffered a miscarriage access to modem methods of family planning without written consent from their
parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar
as they punish any healthcare service provider who fails and or refuses to disseminate information regarding
programs and services on reproductive health regardless of his or her religious beliefs.
55
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to undergo
reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement of
parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar
as they punish any healthcare service provider who fails and/or refuses to refer a patient not in an
emergency or life-threatening case, as defined under Republic Act No. 8344, to another health care service
provider within the same facility or one which is conveniently accessible regardless of his or her religious
beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as
they punish any public officer who refuses to support reproductive health programs or shall do any act that
hinders the full implementation of a reproductive health program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they affect the conscientious objector in securing PhilHealth
accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in defining
abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening
Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16, 2013 ,
is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as constitutional.
SO ORDERED.
JOSE CATRAL MENDOZA

Associate Justice
1
G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner, vs.SANDIGANBAYAN (Third Division) and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the
individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct
line demarcating the limits on individuality beyond which the State cannot tread - asserting that "individual
spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that
the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any
of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of
a civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of
maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws
that would compel obeisance to its collective wisdom and inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order,
carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary
socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright
collision, between the law as the expression of the will of the State, and the zealous attempts by its members to
preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State
authority that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and
Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm.
He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality
mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable
under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused
to due process and to be informed of the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries
are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of
any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination or series of the following means or
similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
2
(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form
of pecuniary benefit from any person and/or entity in connection with any government contract or project or
by reason of the office or position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or
any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and
their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future employment in any business enterprise or
undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or

implementation of decrees and orders intended to benefit particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as
described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos
(P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any
person who participated with the said public officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be
considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in
favor of the State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring
supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations,
docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos.
26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-
Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713
(The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for
Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No.
142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary
investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an
opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the
grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law
under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and
comprehensibility of the Plunder Law.
3
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a
probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused."
On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts
alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for
vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner
submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in
the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law
requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to
due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within
the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic
principle that a legislative measure is presumed to be in harmony with the Constitution.3 Courts invariably train their
sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate o f
constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been
said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the
legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority.
Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed
with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the
courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions
of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of
constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as there is some basis for the decision of the
court, the constitutionality of the challenged law will not be touched and the case will be decided on other available
grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe
environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the
organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the
statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for
absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly
suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."5 And petitioner has miserably failed in the
instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable
the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts,
conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty
and particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons;
4
2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the
following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public
funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection
with any government contract or project or by reason of the office or position of the public officer; (c) by the
illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their
subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any business enterprise
or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations
and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f)
by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at
least ₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what
conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in
its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in
identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the
assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least
₱50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the
various elements of the offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG
SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio,
Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe
a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No.
7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS
OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount
or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (₱4,097,804,173.17), more or
less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR Aseries of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00), MORE
OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK
OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-
accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND
5
JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL

GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY,

for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS (₱130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION
PESOS (₱200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No.
7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE
a.k.a.Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS,
and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO
MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX
HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (₱744,612,450.00),
RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN
MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
(₱1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY
HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF
ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (₱189,700,000.00)
MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN
THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS,
OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in
the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (₱3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse
petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the
crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon
such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to
prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination"
and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec.
2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law
unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature
and cause of the accusation against him, hence, violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because
general terms are used therein, or because of the employment of terms without defining them;6 much less do we
have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its
will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or
ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is
distinctly expressed in the Plunder Law.
6
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural,
plain and ordinary acceptation and signification,7 unless it is evident that the legislature intended a technical or
special legal meaning to those words.8 The intention of the lawmakers - who are, ordinarily, untrained philologists
and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New
Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:"
Combination - the result or product of combining; the act or process of combining. To combine is to bring into such
close relationship as to obscure individual characters.
Series - a number of things or events of the same class coming one after another in spatial and temporal
succession.
That Congress intended the words "combination" and "series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or
number one and something else are included, how about a series of the same act? For example, through
misappropriation, conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It cannot be a
repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
7
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we seem to say
that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of
overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may already
result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or," to read,
therefore: "or conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating "a series."
Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x

8
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say
"acts of plunder" there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different
categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar.
(1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same
category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public
treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or
distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in
the law.
As for "pattern," we agree with the observations of the Sandiganbayan 9 that this term is sufficiently defined in Sec. 4,
in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or
criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass,
accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy'
to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan
of action or method' which the principal accused and public officer and others conniving with him follow to achieve
the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods
used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it
seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly
misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a
statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of
legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by
construction.
A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the
Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle. 10 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The
first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever
directed against such activities.11 With more reason, the doctrine cannot be invoked where the assailed statute is
clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. 12It
must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the
statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed
in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details
in advance as in all other statutes.
9
Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the
deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial
review of its validity -
The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law."13 The overbreadth doctrine, on the other hand, decrees that "a
governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms."14
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible
"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no
readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow specificity." 15 The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their
very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the
area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt
for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist,
"we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." 16 In Broadrick
v. Oklahoma,17 the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances exists under which the Act
would be valid."18 As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is
vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on
their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional."20 As has been pointed out, "vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of
due process typically are invalidated [only] 'as applied' to a particular defendant." 21 Consequently, there is no basis
for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be
applied to parties not before the Court whose activities are constitutionally protected. 22 It constitutes a departure from
the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the
10
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort,"25 and is generally disfavored.26 In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of
the conduct with which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously
claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be
created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific
precision in the law. Every provision of the law should be construed in relation and with reference to every other
part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and
validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being
one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated
upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with
full knowledge of its legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan 28 must be mentioned if only to illustrate and emphasize the point that
courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its
details, and is susceptible of no reasonable construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Actfor being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and
elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its
vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it
seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to
wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through
evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the
discharge of their official function and that their right to be informed of the nature and cause of the accusation
against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being
charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not
suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross
and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e),
of the statute may be committed, and the use of all these phrases in the same Information does not mean that the
indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized
(Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia
Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent
Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful
the act of the public officer in:
x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x
x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public
officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits,
advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through
manifest partiality, evident bad faith or gross inexcusable negligence.
11
In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in
Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general
acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the
immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime
of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in
all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of
Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal.29 The use of the "reasonable doubt" standard is indispensable to command the
respect and confidence of the community in the application of criminal law. It is critical that the moral force of
criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being
condemned. It is also important in our free society that every individual going about his ordinary affairs has
confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper
factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in
the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against
conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he
is charged.30 The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the
deliberations in the floor of the House of Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information
must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of the accused especially so if the amount
committed, say, by falsification is less than ₱100 million, but the totality of the crime committed is ₱100 million since
there is malversation, bribery, falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt.
What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the information – three pairs of pants, pieces
of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime
for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount
is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of
bribery, he was able to accumulate only ₱50,000 and in the crime of extortion, he was only able to accumulate ₱1
million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the
rule of evidence, it is just one single act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a
need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the
amount involved is ₱100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the
total amount would be ₱110 or ₱120 million, but there are certain acts that could not be proved, so, we will sum up
12
the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions,
proved beyond reasonable doubt, is ₱100 million, then there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof
in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or
element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal
misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only
a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount
of at least ₱50,000,000.00. There is no need to prove each and every other act alleged in the Information to have
been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with
having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it
being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they
amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal
acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or
amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond
reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the
predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation
for a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to
prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very
important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a
substantive element of the crime," such that without it the accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying
Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but
not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without
applying Section 4, can you not have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for
violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable
doubt on the acts charged constituting plunder?
13
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a
substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are
concerned that you do not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder
and that cannot be avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and
understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the
epigraph and opening clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being
a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but
only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even
without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present
sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the
accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated
for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily
resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other
persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of
some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should
accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best
be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof
of criminal intent. Thus, he says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a
prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims
the statute is void, petitioner cites the following remarks of Senator Tañada made during the deliberation on S.B. No.
733:
SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence for each and
every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime
of plunder.33
However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted by
petitioner:
14
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence,
which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not
prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond
reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as
the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the
requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the
Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of
the offender is determined by his criminal intent. It is true that §2 refers to "any person who participates with the said
public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We
agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against
using common sense in construing laws as saying what they obviously mean." 35
Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the
affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion
perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray:36
The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely
disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of
kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped,
tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors
or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide,
kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide,
rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the
carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their
very nature.
There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal
acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to
develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that
bankrupted the government and impoverished the population, the Philippine Government must muster the political
will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched
itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to
provide even the most basic services to its people, any form of misappropriation or misapplication of government
funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it
governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified
bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers,
that their perpetrators must not be allowed to cause further destruction and damage to society.
15
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For
when the acts punished are inherently immoral or inherently wrong, they are mala in se37 and it does not matter that
such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala
in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for
violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the
inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional
grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the
same having been eternally consigned by People v. Echegaray38 to the archives of jurisprudential history. The
declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and
becomes, by necessary effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have
shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time
as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government.
Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and
economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to
disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant
tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living
testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the
avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this nation, few issues of national importance can
equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his
eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension
among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above
factionalism and prejudices, shall we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA
7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of
merit.
SO ORDERED.
Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.
1
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT
OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU
OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391

2
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND
R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS
GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the Executive Department of Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
3
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN
A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY
EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity
as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police,Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515

4
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity
as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR

MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A.
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA
TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR
OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater
5
information and facility of communication. But all is not well with the system since it could not filter out a number of
persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting
defamatory statements against him that people can read.
And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this reason, the government has
a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories
of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended
the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
6
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime
of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with
the fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in
determining the constitutionality of laws that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing
with the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act
– accessing the computer system of another without right. It is a universally condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ
tools and techniques used by criminal hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in
it and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records. 5
7
Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the
search, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free
card."6Since the ethical hacker does his job with prior permission from the client, such permission would insulate him
from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
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(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference,
it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other people’s computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9 or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct. 10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no
tendency to intimidate the free exercise of one’s constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
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(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;
8
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause 12 in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take
the name of another in satire, parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others
who are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures. 13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon" 15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the
right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights
which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the
right to the protection of the law against such interference or attacks."
9
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches 16 and
seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy,
a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion.18
The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data.19 The
law punishes those who acquire or use such identifying information without right, implicitly to cause damage.
Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established through the overt acts of the
offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. 20 As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They express fear
that private communications of sexual character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In
common usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or
"a token of love (as a ribbon) usually worn conspicuously." 22 This meaning given to the term "favor" embraces
socially tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of married
couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give
a proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of obscenity to some."23 The
understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary
10
to constitute the illegal cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act
of 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography." 26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it
apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the
lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has
intended.
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover
identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child
pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded
in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,
manufacture or create any form of child pornography" 33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on
paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one
who formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who
replies to the tweet could be considered aiding and abetting a cybercrime.
11
The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For
now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
xxxx
(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication does not purposely include misleading information in
any part of the message in order to induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which
actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads.
What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless
12
entitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.
Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos,
or both, in addition to the civil action which may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with
the higher standard of "actual malice" as a basis for conviction.38 Petitioners argue that inferring "presumed malice"
from the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.
13
Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin
v. People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice. 40
There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not. 42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice.43
The prosecution bears the burden of proving the presence of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false,
is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on
her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in
fact, as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above
case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.
But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement. 45 For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact
true.46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34
to the effect that penal defamation laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives
and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of
their official duties.
14
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression. 48Indeed,
the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it special
duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and
as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)
above merely affirms that online defamation constitutes "similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement
or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were
enacted. The culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a
world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the
internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter
that the Court will deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids
in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of
the internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is
at times sufficient to guide law enforcement agencies in enforcing the law. 51 The legislature is not required to define
every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The
idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.
15
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within
a year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or
other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this
particular user’s posts, enabling them to read the same, and "Following," those whom this particular user is
subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to
his Followers, or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet without the need of copying and pasting
it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun
Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are
so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to
friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds
it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers"
then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses
agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel
in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends
or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or
16
abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or
abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice
as to who should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a case involving
the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission,
by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA
threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal
sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas,
and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling
17
effect on those who express themselves through cyberspace posts, comments, and other messages. 64 Hence,
Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on Elections, 65 "we must view these statements of
the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only
insofar as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of
a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such latitude that they could
arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it
will destroy relationships and, under certain circumstances, will generate enmity and tension between social or
economic groups, races, or religions, exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child pornography," does
this make Google and its users aiders and abettors in the commission of child pornography crimes? 68 Byars
highlights a feature in the American law on child pornography that the Cybercrimes law lacks—the exemption of a
provider or notably a plain user of interactive computer service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any action
voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected.69
When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user
18
downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details.
In this way, certain information is forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of
this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of
internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners
point out, formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing
the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise
of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor is alerted. 72 If Section 5
that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the
username and password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent. 73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),
Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable certainty through adroit tracking of their works.
Absent concrete proof of the same, the innocent will of course be spared.
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed
by, through and with the use of information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for
by the Revised Penal Code, as amended, and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the
Solicitor General points out, there exists a substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed using other means. In using the
technology in question, the offender often evades identification and is able to reach far more victims or cause
greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.
Section 7 provides:
19
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave
the determination of the correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353.
Section 4(c)(4) merely establishes the computer system as another means of publication. 75 Charging the offender
under both laws would be a blatant violation of the proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as
to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the
damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished
with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not
exceeding One million pesos (Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished
with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,
That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two
hundred fifty thousand pesos (Ph₱250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.
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Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate
to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have
been connected with another crime.77 Judges and magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body. 78
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized
to collect or record by technical or electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of
the above-stated information.
The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to
the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.
21
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities
to collect or record "traffic data, in real time, associated with specified communications." 83 And this is precisely what
Section 12 does. It empowers law enforcement agencies in this country to collect or record such data.
But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibiting
sexual organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade
detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones
under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be
located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle
child pornography could use relays of computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-
issued search and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of
privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this
Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation
of privacy must be one society is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.
Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice
22
call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the
packet fits together with other packets.93 The difference is that traffic data sent through the internet at times across
the ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to another where
their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service provider’s communication’s
system will put his voice message into packets and send them to the other person’s cellphone where they are
refitted together and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when he puts his call through. He
also reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone
users in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain
private, such expectation is not one that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange data with one another
over cyberspace except through some service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this data takes them out of the private
sphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognize
as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s
close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the
law.
Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the
Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data.
It is akin to the use of a general search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against
an identified suspect? Can the data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of
23
their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But
this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in
"fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it
is not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and
that the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations
must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such
analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even impossible. "All
the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In
modern terms, the capacity to maintain and support this enclave of private life marks the difference between a
democratic and a totalitarian society."96 The Court must ensure that laws seeking to take advantage of these
technologies be written with specificity and definiteness as to ensure respect for the rights that the Constitution
guarantees.
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They
liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.
24
No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and
are to be considered private communications. But it is not clear that a service provider has an obligation to
indefinitely keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13,
however, the law now requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and those relating to content data for
at least six months from receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process
of preserving data will not unduly hamper the normal transmission or use of the same.
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue
an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or
relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a
valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the
purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that
the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure
for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications
and correspondence. Disclosure can be made only after judicial intervention.
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly
issued, the law enforcement authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium; and
(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.
25
Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning
of the computer system and the measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures.
On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court
warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted
upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service
provider’s storage systems and prevent overload. It would also ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in
its storage system. If he wanted them preserved, he should have saved them in his computer when he generated
the data or received it. He could also request the service provider for a copy before it is deleted.
Section 19 empowers the Department of Justice to restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and
right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states
that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.
26
The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on
the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content
alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one. 100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear
and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.
But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20
to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be
a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are
not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from
the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating
Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national cybersecurity plan.
27
Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation
and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is
to enforce it. The second test mandates adequate guidelines or limitations in the law to determine the boundaries of
1avvphi1
the delegate’s authority and prevent the delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best
practices, assurance and technologies that can be used to protect cyber environment and organization and user’s
assets.104 This definition serves as the parameters within which CICC should work in formulating the cybersecurity
plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such
[cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international cooperation."105 This policy is clearly adopted
in the interest of law and order, which has been considered as sufficient standard.106 Hence, Sections 24 and 26(a)
are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;
b. Section 12 that authorizes the collection or recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad
faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;
28
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised
Penal Code are committed with the use of information and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-
issued warrant;
l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);
o. Section 26(a) that defines the CICC’s Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as
29
2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
1
G.R. No. 196231 January 28, 2014
EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED BY
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE
AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR
LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ, AND ATTY. CARLITO
D. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,

vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF THE
PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D. MONTALBAN, JR.,
IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF MALACANANG LEGAL
AFFAIRS,Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012 Decision 1which
ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special Prosecutor Wendell Barreras-
Sulit. Their petitions challenged the constitutionality of Section 8(2) of Republic Act (RA) No. 6770. 2
In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and ruled that the
President has disciplinary jurisdiction over a Deputy Ombudsman and a Special Prosecutor. The Court, however,
reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting
betrayal of public trust; and (ii) imposed on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary proceedings against her,
solely questioned the jurisdiction of the OP to subject her to disciplinary proceedings. The Court affirmed the
continuation of the proceedings against her after upholding the constitutionality of Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 1 O-J-460 is
REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of
backwages corresponding to the period of suspension effective immediately, even as the Office of the Ombudsman
is directed to proceed with the investigation in connection with the above case against petitioner. In G.R. No.
196232, We AFFIRM the continuation of OP-DC Case No. ll-B-003 against Special Prosecutor Wendell Barreras-
Sulit for alleged acts and omissions tantamount to culpable violation of the Constitution and a betrayal of public
trust, in accordance with Section 8(2) of the Ombudsman Act of 1989. 3
In view of the Court’s ruling, the OP filed the present motion for reconsideration through the Office of the Solicitor
General (OSG).
We briefly narrate the facts that preceded the filing of the petitions and the present motion for reconsideration.
I. ANTECEDENTS
2
A. Gonzales’ petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police Internal Affairs Service
(PNP-IAS) and with the Manila City Prosecutor’s Office against Manila Police District Senior Inspector Rolando
Mendoza and four others (Mendoza, et al.) for robbery, grave threat, robbery extortion and physical injury. 4
On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative charge for grave
misconduct with the National Police Commission (NAPOLCOM) PNP-NCRPO against Mendoza, et al. based on the
same allegations made by Kalaw before the PNP-IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers (MOLEO),
directed the NAPOLCOM to turn over the records of Mendoza’s case to his office. The Office of the Regional
Director of the NAPOLCOM duly complied on July 24, 2008.6 Mendoza, et al. filed their position papers with
Gonzales, in compliance with his Order.7
Pending Gonzales’ action on Mendoza, et al.’s case (on August 26, 2008), the Office of the City Prosecutor of
Manila City dismissed Kalaw’s complaint against Mendoza, et al. for his failure to substantiate his
allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the dismissal without prejudice of the
administrative case against Mendoza, et al. for Kalaw’s failure to prosecute.9
On February 16, 2009, after preparing a draft decision on Mendoza, et al.’s case, Gonzales forwarded the entire
records to the Office of then Ombudsman Merceditas Gutierrez for her review.10 In his draft decision, Gonzales
found Mendoza, et al. guilty of grave misconduct and imposed on them the penalty of dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsman’s decision that approved Gonzales’ recommendation on
October 30, 2009. Mendoza, et al. filed a motion for reconsideration 12 on November 5, 2009, followed by a
Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.’s case records to the Criminal
Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14, 2009, the case was assigned to
Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for review and recommendation. 14
GIPO Garcia released a draft order15 to his immediate superior, Director Eulogio S. Cecilio, for appropriate action on
April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales’ office on April 27, 2010. Gonzales
reviewed the draft and endorsed the order, together with the case records, on May 6, 2010 for the final approval by
the Ombudsman.16
On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.’s case, Mendoza hijacked a tourist
bus and held the 21 foreign tourists and the four Filipino tour assistants on board as hostages. While the
government exerted earnest attempts to peacefully resolve the hostage-taking, it ended tragically, resulting in the
deaths of Mendoza and several others on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the Department of Interior
and Local Government to conduct a joint thorough investigation of the incident. The two departments issued Joint
Department Order No. 01-2010, creating an Incident Investigation and Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable for their "gross
negligence and grave misconduct in handling the case against Mendoza." 17 The IIRC stated that the Ombudsman
and Gonzales’ failure to promptly resolve Mendoza’s motion for reconsideration, "without justification and despite
repeated pleas" xxx "precipitated the desperate resort to hostage-taking."18 The IIRC recommended the referral of
its findings to the OP for further determination of possible administrative offenses and for the initiation of the proper
administrative proceedings.19
3
Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect of Duty and/or
Inefficiency in the Performance of Official Duty and for Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the service.21According to
the OP, "the inordinate and unjustified delay in the resolution of [Mendoza’s] Motion for Reconsideration [‘that
spanned for nine (9) long months’] xxx amounted to gross neglect of duty" and "constituted a flagrant disregard of
the Office of the Ombudsman’s own Rules of Procedure." 22
c. The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a Deputy
Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises administrative disciplinary
jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April 27, 2010. On May
6, 2010, he completed his review of the draft, approved it, and transmitted it to the Office of the Ombudsman for final
approval. Since the draft order on Mendoza’s motion for reconsideration had to undergo different levels of
preparation, review and approval, the period it took to resolve the motion could not be unjustified, since he himself
acted on the draft order only within nine (9) calendars days from his receipt of the order.23
B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several others, before the
Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia filed an Urgent Petition for Bail which
the prosecution opposed. The Sandiganbayan denied Garcia's urgent petition for bail on January 7, 2010, in view of
the strength of the prosecution’s evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff, entered into a plea
bargaining agreement (Agreement) with Garcia.24 Garcia thereby agreed to: (i) withdraw his plea of not guilty to the
charge of plunder and enter a plea of guilty to the lesser offense of indirect bribery; and (ii) withdraw his plea of not
guilty to the charge of money laundering and enter a guilty plea to the lesser offense of facilitating money
laundering. In exchange, he would convey to the government his ownership, rights and other interests over the real
and personal properties enumerated in the Agreement and the bank deposits alleged in the information. 25
The Sandiganbayan approved the Agreement on May 4, 2010 26 based on the parties’ submitted Joint Motion for
Approval.27
The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee on Justice of the
House of Representatives to conduct an investigation. After public hearings, the Committee found that Sulit, her
deputies and assistants committed culpable violations of the Constitution and betrayal of public trust – grounds for
removal under Section 8(2) of RA No. 6770.28The Committee recommended to the President the dismissal from the
service of Sulit and the filing of appropriate charges against her deputies and assistants before the appropriate
government office.
Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit. 29 On March 24, 2011, Sulit filed
her Written Explanation, questioning the OP’s jurisdiction.30 The question of jurisdiction notwithstanding, the OP set
the case for preliminary investigation on April 15, 2011, prompting Sulit to seek relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and to declare
Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman. (As the full explanation
of the Court’s vote describes below, this conclusion does not apply to Sulit as the grant of independence is solely
4
with respect to the Office of the Ombudsman which does not include the Office of the Special Prosecutor under the
Constitution. The prevailing ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J.
Marvic Mario Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the petitioners
At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of the Court’s
September 4, 2012 Decision; only the OP, through the OSG, moved for the reconsideration of our ruling reinstating
Gonzales.
This omission, however, poses no obstacle for the Court’s review of its ruling on the whole case since a serious
constitutional question has been raised and is one of the underlying bases for the validity or invalidity of the
presidential action. If the President does not have any constitutional authority to discipline a Deputy Ombudsman
and/or a Special Prosecutor in the first place, then any ruling on the legal correctness of the OP’s decision on the
merits will be an empty one.
In other words, since the validity of the OP’s decision on the merits of the dismissal is inextricably anchored on the
final and correct ruling on the constitutional issue, the whole case – including the constitutional issue – remains alive
for the Court’s consideration on motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the administrative disciplinary
jurisdiction of the President (concurrently with that of the Ombudsman) is a justiciable – not a political – question. A
justiciable question is one which is inherently susceptible of being decided on grounds recognized by law,31 as
where the court finds that there are constitutionally-imposed limits on the exercise of the powers conferred on a
political branch of the government.32
In resolving the petitions, we do not inquire into the wisdom of the Congress’ choice to grant concurrent disciplinary
authority to the President. Our inquiry is limited to whether such statutory grant violates the Constitution, particularly
whether Section 8(2) of RA No. 6770 violates the core constitutional principle of the independence of the Office of
the Ombudsman as expressed in Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA No. 6770 grants
where the Constitution confers none. When exercised authority is drawn from a vacuum, more so when the authority
runs counter to a core constitutional principle and constitutional intents, the Court is duty-bound to intervene under
the powers and duties granted and imposed on it by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as the
people's medium for airing grievances and for direct redress against abuses and misconduct in the government.
Ultimately, however, these agencies failed to fully realize their objective for lack of the political independence
necessary for the effective performance of their function as government critic. 33
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-mandated office to
give it political independence and adequate powers to enforce its mandate. Pursuant to the 1973 Constitution,
President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and PD No.
1630, creating the Office of the Ombudsman to be known as Tanodbayan. It was tasked principally to investigate,
5
on complaint or motu proprio, any administrative act of any administrative agency, including any government-owned
or controlled corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers previously
vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the exclusive authority
to conduct preliminary investigation of all cases cognizable by the Sandiganbayan, file the corresponding
information, and control the prosecution of these cases.34
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional fiat. Unlike
in the 1973 Constitution, its independence was expressly and constitutionally guaranteed. Its objectives are to
enforce the state policy in Section 27, Article II35 and the standard of accountability in public service under Section
1, Article XI of the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption.
Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and
lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be the
"protector of the people" against the inept, abusive, and corrupt in the Government, to function essentially as a
complaints and action bureau.36 This constitutional vision of a Philippine Ombudsman practically intends to make
the Ombudsman an authority to directly check and guard against the ills, abuses and excesses of the bureaucracy.
Pursuant to Section 13(8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further
realize the vision of the Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or
over Members of Congress, and the Judiciary. [emphasis ours, italics supplied]
As the Ombudsman is expected to be an "activist watchman," 37 the Court has upheld its actions, although not
squarely falling under the broad powers granted it by the Constitution and by RA No. 6770, if these actions are
reasonably in line with its official function and consistent with the law and the Constitution. 38
The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance, misfeasance, and
nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their tenure.
To support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from the
pressures and influence of officialdom and partisan politics and from fear of external reprisal by making it an
"independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be
known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A
separate Deputy for the military establishment may likewise be appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful government
constitutional agency that is considered "a notch above other grievance-handling investigative bodies."39 It has
powers, both constitutional and statutory, that are commensurate with its daunting task of enforcing accountability of
public officers.40
b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence

6
Under the Constitution, several constitutional bodies have been expressly labeled as "independent." 41The extent of
the independence enjoyed by these constitutional bodies however varies and is to be interpreted with two significant
considerations in mind: first, the functions performed or the powers involved in a given case; and second,
consistency of any allowable interference to these powers and functions, with the principle of checks and balances.
Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions shares
certain characteristics – they do not owe their existence to any act of Congress, but are created by the Constitution
itself; additionally, they all enjoy fiscal autonomy. In general terms, the framers of the Constitution intended that
these "independent" bodies be insulated from political pressure to the extent that the absence of "independence"
would result in the impairment of their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the interference that the
President may bring and maintained that the independence and the flexibility of the Judiciary, the Constitutional
Commissions and the Office of the Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional
system is based.
The constitutional deliberations explain the Constitutional Commissions’ need for independence. In the deliberations
of the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a constitutionally-created
Civil Service Commission, instead of one created by law, on the premise that the effectivity of this body is
dependent on its freedom from the tentacles of politics.43 In a similar manner, the deliberations of the 1987
Constitution on the Commission on Audit highlighted the developments in the past Constitutions geared towards
insulating the Commission on Audit from political pressure. 44
Notably, the Constitution also created an "independent" Commission on Human Rights, although it enjoys a lesser
degree of independence since it is not granted fiscal autonomy in the manner fiscal autonomy is granted to the
constitutional commissions. The lack of fiscal autonomy notwithstanding, the framers of the 1987 Constitution clearly
expressed their desire to keep the Commission independent from the executive branch and other political leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him our concept, he
can advise us on how to reconcile his position with ours. The position of the committee is that we need a body that
would be able to work and cooperate with the executive because the Commissioner is right. Many of the services
needed by this commission would need not only the cooperation of the executive branch of the government but also
of the judicial branch of government. This is going to be a permanent constitutional commission over time. We also
want a commission to function even under the worst circumstance when the executive may not be very cooperative.
However, the question in our mind is: Can it still function during that time? Hence, we are willing to accept
suggestions from Commissioner Rodrigo on how to reconcile this. We realize the need for coordination and
cooperation. We also would like to build in some safeguards that it will not be rendered useless by an uncooperative
executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions or organizations on human rights go to a country, the
most credible organizations are independent human rights bodies. Very often these are private organizations, many
of which are prosecuted, such as those we find in many countries in Latin America. In fact, what we are proposing is
an independent body on human rights, which would provide governments with credibility precisely because it is
independent of the present administration. Whatever it says on the human rights situation will be credible because it
is not subject to pressure or control from the present political leadership.
7
Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in opposition
today and those who are in power today may be in the opposition tomorrow. Therefore, if we have a Commission on
Human Rights that would investigate and make sure that the rights of each one is protected, then we shall have a
body that could stand up to any power, to defend the rights of individuals against arrest, unfair trial, and so on. 45
These deliberative considerations abundantly show that the independent constitutional commissions have been
consistently intended by the framers to be independent from executive control or supervision or any form of political
influence. At least insofar as these bodies are concerned, jurisprudence is not scarce on how the "independence"
granted to these bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been characterized
under the Constitution as "independent," are not under the control of the President, even if they discharge functions
that are executive in nature. The Court declared as unconstitutional the President’s act of temporarily appointing the
respondent in that case as Acting Chairman of the Comelec "however well-meaning"47 it might have been.
In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the commissioners of the
independent Commission on Human Rights could not be placed under the discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the
Constitution to be independent – as the Commission on Human Rights – and vested with the delicate and vital
functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well
as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of
its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being
antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere review of the rules of the Commission
on Elections by Congress a "trampling" of the constitutional mandate of independence of this body. Obviously, the
mere review of rules places considerably less pressure on a constitutional body than the Executive’s power to
discipline and remove key officials of the Office of the Ombudsman, yet the Court struck down the law as
unconstitutional.
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but is similar in
degree and kind – to the independence similarly guaranteed by the Constitution to the Constitutional Commissions
since all these offices fill the political interstices of a republican democracy that are crucial to its existence and
proper functioning.50
c. Section 8(2) of RA No. 6770

vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed caution against presidential interference with the constitutional
commissions, on one hand, and those expressed by the framers of the 1987 Constitution, on the other, in protecting
the independence of the Constitutional Commissions, speak for themselves as overwhelming reasons to invalidate
Section 8(2) of RA No. 6770 for violating the independence of the Office of the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by the President,
whose own alter egos and officials in the Executive Department are subject to the Ombudsman’s disciplinary
authority, cannot but seriously place at risk the independence of the Office of the Ombudsman itself. The Office of
the Ombudsman, by express constitutional mandate, includes its key officials, all of them tasked to support the
Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted independence is
8
what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with the independence
that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and
balances that the creation of an Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The Ombudsman can hardly be expected to place her complete
trust in her subordinate officials who are not as independent as she is, if only because they are subject to pressures
and controls external to her Office. This need for complete trust is true in an ideal setting and truer still in a young
democracy like the Philippines where graft and corruption is still a major problem for the government. For these
reasons, Section 8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be
declared void.
The deliberations of the Constitutional Commission on the independence of the Ombudsman fully support this
position. Commissioner Florenz Regalado of the Constitutional Commission expressed his apprehension that any
form of presidential control over the Office of the Ombudsman would diminish its independence. 51 The following
exchanges between Commissioners Blas Ople and Christian Monsod further reveal the constitutional intent to keep
the Office of the Ombudsman independent from the President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment xxx, by way of
designating the office of the Ombudsman as a constitutional arm for good government, efficiency of the public
service and the integrity of the President of the Philippines, instead of creating another agency in a kind of
administrative limbo which would be accountable to no one on the pretext that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee deliberations and when we prepared the
report, it was the opinion of the Committee — and I believe it still is — that it may not contribute to the effectiveness
of this office of the Ombudsman precisely because many of the culprits in inefficiency, injustice and impropriety are
in the executive department. Therefore, as we saw the wrong implementation of the Tanodbayan which was under
the tremendous influence of the President, it was an ineffectual body and was reduced to the function of a special
fiscal. The whole purpose of our proposal is precisely to separate those functions and to produce a vehicle that will
give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the proposition. 52
The statements made by Commissioner Monsod emphasized a very logical principle: the Executive power to
remove and discipline key officials of the Office of the Ombudsman, or to exercise any power over them, would
result in an absurd situation wherein the Office of the Ombudsman is given the duty to adjudicate on the integrity
and competence of the very persons who can remove or suspend its members. Equally relevant is the impression
that would be given to the public if the rule were otherwise. A complainant with a grievance against a high-ranking
official of the Executive, who appears to enjoy the President’s favor, would be discouraged from approaching the
Ombudsman with his complaint; the complainant’s impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the constitutional
intent of creating an Office of the Ombudsman as champion of the people against corruption and bureaucracy.
d. The mutual-protection argument for

crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of an external
check against the Deputy Ombudsman would result in mutual protection between the Ombudsman and her
Deputies.
While the preceding discussion already suffices to address this concern, it should be added that this concern stands
on shaky grounds since it ignores the existing checks and balances already in place. On the one hand, the
Ombudsman’s Deputies cannot protect the Ombudsman because she is subject to the impeachment power of
Congress. On the other hand, the Ombudsman’s attempt to cover up the misdeeds of her Deputies can be
questioned before the Court on appeal or certiorari. The same attempt can likewise subject her to impeachment.
9
The judicial recourse available is only consistent with the nature of the Supreme Court as a non-political
independent body mandated by the Constitution to settle judicial and quasi-judicial disputes, whose judges and
employees are not subject to the disciplinary authority of the Ombudsman and whose neutrality would be less
questionable. The Members of the Court themselves may be subjected to the impeachment power of Congress.
In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible. At the same
time, the Court remains consistent with its established rulings - that the independence granted to the Constitutional
Commissions bars any undue interference from either the Executive or Congress – and is in full accord with
constitutional intent.
e. Congress’ power determines the

manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987 Constitution,53 Congress is empowered to determine the modes of removal
from office of all public officers and employees except the President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman, who are all impeachable
officials.
The intent of the framers of the Constitution in providing that "[a]ll other public officers and employees may be
removed from office as provided by law, but not by impeachment" in the second sentence of Section 2, Article XI is
to prevent Congress from extending the more stringent rule of "removal only by impeachment" to favored public
officers.54 Understandably so, impeachment is the most difficult and cumbersome mode of removing a public officer
from office. It is, by its nature, a sui generis politico-legal process55 that signals the need for a judicious and careful
handling as shown by the process required to initiate the proceeding;56 the one-year limitation or bar for its
initiation;57 the limited grounds for impeachment;58 the defined instrumentality given the power to try impeachment
cases;59 and the number of votes required for a finding of guilt.60 All these argue against the extension of this
removal mechanism beyond those mentioned in the Constitution.
On the practical side, our nation has witnessed the complications and problems an impeachment proceeding entails,
thus justifying its limited application only to the officials occupying the highest echelons of responsibility in our
government. To name a few, some of the negative practical effects of impeachment are: it stalls legislative work; it is
an expensive process in terms of the cost of prosecution alone; and, more importantly, it is inherently divisive of the
nation.61 Thus, in a cost-benefit analysis of adopting impeachment as a mechanism, limiting Congress’ power to
otherwise legislate on the matter is far more advantageous to the country.
It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should be read.
Contrary to the implied view of the minority, in no way can this provision be regarded as blanket authority for
Congress to provide for any ground of removal it deems fit. While the manner and cause of removal are left to
congressional determination, this must still be consistent with constitutional guarantees and principles, namely: the
right to procedural and substantive due process; the constitutional guarantee of security of tenure; the principle of
separation of powers; and the principle of checks and balances.62
In short, the authority granted by the Constitution to Congress to provide for the manner and cause of removal of all
other public officers and employees does not mean that Congress can ignore the basic principles and precepts
established by the Constitution.
In the same manner, the congressional determination of the identity of the disciplinary authority is not a blanket
authority for Congress to repose it on whomsoever Congress chooses without running afoul of the independence
enjoyed by the Office of the Ombudsman and without disrupting the delicate check and balance mechanism under
the Constitution. Properly viewed from this perspective, the core constitutional principle of independence is
observed and any possible absurdity resulting from a contrary interpretation is avoided. In other words, while the
Constitution itself vested Congress with the power to determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with the core constitutional principle of
independence of the Office of the Ombudsman. Our observation in Macalintal v. Comelec 63 is apt:
10
The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions.
One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions
such as the COMELEC shall be "independent."
While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is intended as a
measure of protection for the Deputy Ombudsman and Special Prosecutor – since these grounds are not intended
to cover all kinds of official wrongdoing and plain errors of judgment - this argument seriously overlooks the erosion
of the independence of the Office of the Ombudsman that it creates. The mere fact that a statutorily-created sword
of Damocles hangs over the Deputy Ombudsman’s head, by itself, opens up all the channels for external pressures
and influence of officialdom and partisan politics. The fear of external reprisal from the very office he is to check for
excesses and abuses defeats the very purpose of granting independence to the Office of the Ombudsman.
That a judicial remedy is available (to set aside dismissals that do not conform to the high standard required in
determining whether a Deputy Ombudsman committed an impeachable offense) and that the President’s power of
removal is limited to specified grounds are dismally inadequate when balanced with the constitutional principle of
independence. The mere filing of an administrative case against the Deputy Ombudsman and the Special
Prosecutor before the OP can already result in their suspension and can interrupt the performance of their functions,
in violation of Section 12, Article XI of the Constitution. With only one term allowed under Section 11, a Deputy
Ombudsman or Special Prosecutor, if removable by the President, can be reduced to the very same ineffective
Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these offices
independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its decision finding
Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust is patently
erroneous. The OP’s decision perfectly illustrates why the requirement of impeachment-grounds in Section 8(2) of
RA No. 6770 cannot be considered, even at a minimum, a measure of protection of the independence of the Office
of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s

finding of gross negligence
has no legal and factual leg to
stand on
The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The assailed Decision
of the OP reads:
Upon consideration of the First Report, the evidence and allegations of respondent Deputy Ombudsman himself,
and other documentary evidence gathered, this Office finds that the inordinate and unjustified delay in the resolution
of Captain Mendoza’s Motion for Reconsideration timely filed on 5 November 2009 xxx amounted to gross neglect
of duty and/or inefficiency in the performance of official duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of the
Ombudsman,65 which was followed by a Supplement to the Motion for Reconsideration; 66
2. December 14, 200967 - GIPO Garcia, who was assigned to review these motions and make his
recommendation for the appropriate action, received the records of the case;
3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by his immediate superior, Dir.
Cecilio;68
11
4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this draft order; 69
5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) – Gonzales endorsed the draft
order for the final approval of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were already pending
before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of even the slightest care, acting or omitting to act
in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious
indifference to consequences insofar as other persons may be affected. In the case of public officials, there is gross
negligence when a breach of duty is flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case forwarded to him
within nine days. In finding Gonzales guilty, the OP72 relied on Section 8, Rule III of Administrative Order No. 7 (or
the Rules of Procedure of the Office of the Ombudsman, series of 1990, as amended) in ruling that Gonzales should
have acted on Mendoza’s Motion for Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation: Grounds – Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of the decision or
order by the party on the basis of any of the following grounds:
a) New evidence had been discovered which materially affects the order, directive or decision;
b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to the interest of the
movant.
Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall resolve the
same within five (5) days from the date of submission for resolution. [emphasis and underscore ours]
Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales since he is a
Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing Officer tasked with the initial
resolution of the motion. In Section 6 of Administrative Order No. 7 on the resolution of the case and submission of
the proposed decision, the period for resolving the case does not cover the period within which it should be
reviewed:
Section 6. Rendition of decision. – Not later than thirty (30) days after the case is declared submitted for resolution,
the Hearing Officer shall submit a proposed decision containing his findings and recommendation for the approval of
the Ombudsman. Said proposed decision shall be reviewed by the Directors, Assistant Ombudsmen and Deputy
Ombudsmen concerned. With respect to low ranking public officials, the Deputy Ombudsman concerned shall be
the approving authority. Upon approval, copies thereof shall be served upon the parties and the head of the office or
agency of which the respondent is an official or employee for his information and compliance with the appropriate
directive contained therein. [italics and emphases supplied]
Thus, the OP’s ruling that Gonzales had been grossly negligent for taking nine days, instead of five days, to review
a case was totally baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised his subordinates to promptly act on Mendoza’s motion and
apprised the Tanodbayan of the urgency of resolving the same are similarly groundless.
The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases that involve the
potential loss of employment of many other public employees. We cannot conclusively state, as the OP appears to
suggest, that Mendoza’s case should have been prioritized over other similar cases.
12
The Court has already taken judicial notice of the steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates against the OSG’s observation that there was "a grossly
inordinate and inexcusable delay"74 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition of cases" before, among others, quasi-judicial
bodies,75 like the Office of the Ombudsman, is itself a relative concept. 76 Thus, the delay, if any, must be measured
in this objective constitutional sense. Unfortunately, because of the very statutory grounds relied upon by the OP in
dismissing Gonzales, the political and, perhaps, "practical" considerations got the better of what is legal and
constitutional.
The facts do not show that Gonzales’ subordinates had in any way been grossly negligent in their work. While GIPO
Garcia reviewed the case and drafted the order for more than three months, it is noteworthy that he had not drafted
the initial decision and, therefore, had to review the case for the first time. 77 Even the Ombudsman herself could not
be faulted for acting on a case within four months, given the amount of cases that her office handles.
The point is that these are not inordinately long periods for the work involved: examination of the records, research
on the pertinent laws and jurisprudence, and exercise of legal judgment and discretion. If this Court rules that these
periods per se constitute gross neglect of duty, the Ombudsman’s constitutional mandate to prosecute all the erring
officials of this country would be subjected to an unreasonable and overwhelming constraint. Similarly, if the Court
rules that these periods per se constitute gross neglect of duty, then we must be prepared to reconcile this with the
established concept of the right of speedy disposition of cases – something the Court may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in Mendoza’s case by having the case endorsed to
the Office of the Ombudsman and by resolving it against Mendoza on the basis of the unverified complaint-affidavit
of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it were based
merely on the request of the alleged victim’s father. The Constitution empowers the Ombudsman and her Deputies
to act promptly on complaints filed in any form or manner against any public official or employee of the
government.78 This provision is echoed by Section 13 of RA No. 6770,79 and by Section 3, Rule III of Administrative
Order No. 7, series of 1990, as amended.80
Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the unverified affidavit
of Kalaw. Based on the prosecution officer’s recommendations, the finding of guilt on the part of Mendoza, et al. was
based on their admissions as well. Mendoza, et al. admitted that they had arrested Kalaw based on two traffic
violations and allowed him to stay the whole night until the following morning in the police precinct. The next
morning, Kalaw was allowed to leave the precinct despite his failure to show a valid license and based merely on his
promise to return with the proper documents.81 These admissions led Gonzales and his staff to conclude that
Mendoza, et al. irregularly acted in apprehending Kalaw, since the proper procedure for the apprehension of traffic
violators would be to give them a ticket and to file a case, when appropriate. 82
Lastly, we cannot deduce undue interest simply because Gonzales’ decision differs from the decision of the PNP-
IAS (which dismissed the complaint against Mendoza). To be sure, we cannot tie the hands of any judicial or quasi-
judicial body by ruling that it should always concur with the decisions of other judicial or quasi-judicial bodies which
may have also taken cognizance of the case. To do so in the case of a Deputy Ombudsman would be repugnant to
the independence that our Constitution has specifically granted to this office and would nullify the very purpose for
which it was created.
e. Penalty of dismissal totally

incommensurate with established facts
Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by the OP
necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be held liable for our own
13
misdeeds; we can be made to account only for lapses in our responsibilities. It is notable that of all the officers, it
was Gonzales who took the least time — nine days — followed by Cecilio, who took 21 days; Garcia — the writer of
the draft — took less than four months, and the Ombudsman, less than four months until the kidnapping incident
rendered Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does not preclude the
Ombudsman from looking into any other possible administrative liability of Gonzales under existing Civil Service
laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan at the
time83 became the Office of the Special Prosecutor under the 1987 Constitution. While the composition of the
independent Office of the Ombudsman under the 1987 Constitution does not textually include the Special
Prosecutor, the weight of the foregoing discussions on the unconstitutionality of Section 8(2) of RA No. 6770 should
equally apply to the
Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded in
jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to create the Office of the Ombudsman, known as the
Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11, 1978, President Ferdinand
Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was given the "exclusive authority" to conduct
preliminary investigation and to prosecute cases that are within the jurisdiction of the Sandiganbayan. 87 PD No.
1486 expressly gave the Secretary of Justice the power of control and supervision over the Special
Prosecutor.88 Consistent with this grant of power, the law also authorized the Secretary of Justice to appoint or
detail to the Office of the CSP "any officer or employee of Department of Justice or any Bureau or Office under the
executive supervision thereof" to assist the Office of the CSP.
In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away from it by the
Office of the CSP. The law "created in the Office of the Tanodbayan an Office of the Chief Special Prosecutor"
under the Tanodbayan’s control,90 with the exclusive authority to conduct preliminary investigation and prosecute all
cases cognizable by the Sandiganbayan. Unlike the earlier decree, the law also empowered the Tanodbayan to
appoint Special Investigators and subordinate personnel and/or to detail to the Office of the CSP any public officer
or employees who "shall be under the supervision and control of the Chief Special Prosecutor." 91 In 1979, PD No.
1630 further amended the earlier decrees by transferring the powers previously vested in the Special Prosecutor
directly to the Tanodbayan himself.92
This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987 Constitution, an
"independent Office of the Ombudsman" is created.93 The existing Tanodbayan is made the Office of the Special
Prosecutor, "who shall continue to function and exercise its powers as now94 or hereafter may be provided by law." 95
Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and employees of the Office
of the Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution provides that the Ombudsman may exercise
"such other powers or perform such functions or duties as may be provided by law." Pursuant to this constitutional
command, Congress enacted RA No. 6770 to provide for the functional and structural organization of the Office of
the Ombudsman and the extent of its disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the Ombudsman,
including in this Office not only the offices of the several Deputy Ombudsmen but the Office of the Special
Prosecutor as well. In terms of appointment, the law gave the President the authority to appoint the Ombudsman,
his Deputies and the Special Prosecutor, from a list of nominees prepared by the Judicial and Bar Council. In case
of vacancy in these positions, the law requires that the vacancy be filled within three (3) months from occurrence. 97
14
The law also imposes on the Special Prosecutor the same qualifications it imposes on the Ombudsman
himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and qualifications,100 rank and salary are
likewise the same.101 The requirement on disclosure102 is imposed on the Ombudsman, the Deputies and the
Special Prosecutor as well. In case of vacancy in the Office of the Ombudsman, the Overall Deputy cannot assume
the role of Acting Ombudsman; the President may designate any of the Deputies or the Special Prosecutor as
Acting Ombudsman.103 The power of the Ombudsman and his or her deputies to require other government agencies
to render assistance to the Office of the Ombudsman is likewise enjoyed by the Special Prosecutor. 104
Given this legislative history, the present overall legal structure of the Office of the Ombudsman, both under the
1987 Constitution and RA No. 6770, militates against an interpretation that would insulate the Deputy Ombudsman
from the disciplinary authority of the OP and yet expose the Special Prosecutor to the same ills that a grant of
independence to the Office of the Ombudsman was designed for.
Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the Ombudsman, aside
from his or her deputies, by making the Office of the Special Prosecutor an organic component of the Office of the
Ombudsman and by granting the Ombudsman control and supervision over that office. 105 This power of control and
supervision includes vesting the Office of the Ombudsman with the power to assign duties to the Special Prosecutor
as he/she may deem fit.1âwphi1 Thus, by constitutional design, the Special Prosecutor is by no means an ordinary
subordinate but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which
include investigation and prosecution of officials in the Executive Department.
Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal cases within the
jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-ranking executive officials. For
emphasis, subjecting the Special Prosecutor to disciplinary and removal powers of the President, whose own alter
egos and officials in the Executive Department are subject to the prosecutorial authority of the Special Prosecutor,
would seriously place the independence of the Office of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of the Office of the
Ombudsman, the role it performs as an organic component of that Office militates against a differential treatment
between the Ombudsman’s Deputies, on one hand, and the Special Prosecutor himself, on the other. What is true
for the Ombudsman must be equally true, not only for her Deputies but, also for other lesser officials of that Office
who act directly as agents of the Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at bottom, the Office of the
Special Prosecutor is not a subordinate agency of the Office of the Ombudsman and is, in fact, separate and distinct
from the latter. In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that the intent of the
framers of the 1987 Constitution was to place the Office of the Special Prosecutor under the Office of the President.
Xxx
In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth
known as the Office of the Special Prosecutor, "shall continue to function and exercise its powers as now or
hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this
Constitution." The underscored phrase evidently refers to the Tanodbayan's powers under P.D. No. 1630 or
subsequent amendatory legislation. It follows then that Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. N0. 1630 or grant it other powers, except those powers conferred by the
Constitution on the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13,
Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform functions or duties as
may be provided by law," it is indubitable then that Congress has the power to place the Office of the Special
Prosecutor under the Office of the Ombudsman.107
15
Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the
Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy
the same grant of independence under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its September 4, 2012
Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We declared Section 8(2) of RA No. 6770
unconstitutional by granting disciplinary jurisdiction to the President over a Deputy Ombudsman, in violation of the
independence of the Office of the Ombudsman.
However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA No. 6770 insofar
as Sulit is concerned. The Court did not consider the Office of the Special Prosecutor to be constitutionally within the
Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under the Constitution.
WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL. This ruling
renders any further ruling on the dismissal of Deputy Ombudsman Emilio Gonzales III unnecessary, but is without
prejudice to the power of the Ombudsman to conduct an administrative investigation, if warranted, into the possible
administrative liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules and
regulations.
SO ORDERED.
ARTURO D. BRION
Associate Justice
1
G.R. No. 162230 April 28, 2010
ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA MANIMBO, LEONOR H. SUMAWANG,

CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES
M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M.
PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PEÑA,
EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P. MALLARI,
ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA, MARTA A.
GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA PEÑA, MARIA DELA PAZ B. CULALA, ESPERANZA
MANAPOL, JUANITA M. BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA
R. PUNZALAN, JANUARIA G. GARCIA, PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG,
ROSARIO C. BUCO, GAUDENCIA C. DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA
C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON
M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA S. BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO,
CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA
M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA, et al. In their capacity and as
members of the "Malaya Lolas Organization", Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF
FOREIGN AFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS
N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO, Respondents.
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by plaintiffs in these
actions, exchanged full compensation of plaintiffs for a future peace. History has vindicated the wisdom of that
bargain. And while full compensation for plaintiffs' hardships, in the purely economic sense, has been denied these
former prisoners and countless other survivors of the war, the immeasurable bounty of life for themselves and their
posterity in a free society and in a more peaceful world services the debt.1
There is a broad range of vitally important areas that must be regularly decided by the Executive Department
without either challenge or interference by the Judiciary. One such area involves the delicate arena of foreign
relations. It would be strange indeed if the courts and the executive spoke with different voices in the realm of
foreign policy. Precisely because of the nature of the questions presented, and the lapse of more than 60 years
since the conduct complained of, we make no attempt to lay down general guidelines covering other situations not
involved here, and confine the opinion only to the very questions necessary to reach a decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a
writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the
Department of Foreign Affairs (DFA), the Secretary of the Department of Justice (DOJ), and the Office of the
Solicitor General (OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the
Securities and Exchange Commission, established for the purpose of providing aid to the victims of rape by
Japanese military forces in the Philippines during the Second World War.ten.lihpwal
Petitioners narrate that during the Second World War, the Japanese army attacked villages and systematically
raped the women as part of the destruction of the village. Their communities were bombed, houses were looted and
burned, and civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the
2
women and held them in houses or cells, where they were repeatedly raped, beaten, and abused by Japanese
soldiers. As a result of the actions of their Japanese tormentors, the petitioners have spent their lives in misery,
having endured physical injuries, pain and disability, and mental and emotional suffering. 2
Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and
OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the
establishment of the "comfort women" stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the comfort women for
compensation had already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines
and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b) compel the respondents to espouse their claims for
official apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and
other international tribunals.
Petitioners’ arguments
Petitioners argue that the general waiver of claims made by the Philippine government in the Treaty of Peace with
Japan is void. They claim that the comfort women system established by Japan, and the brutal rape and
enslavement of petitioners constituted a crime against humanity,3 sexual slavery,4 and torture.5 They allege that the
prohibition against these international crimes is jus cogens norms from which no derogation is possible; as such, in
waiving the claims of Filipina comfort women and failing to espouse their complaints against Japan, the Philippine
government is in breach of its legal obligation not to afford impunity for crimes against humanity. Finally, petitioners
assert that the Philippine government’s acceptance of the "apologies" made by Japan as well as funds from the
Asian Women’s Fund (AWF) were contrary to international law.
Respondents’ Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the
San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956. 6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering
caused by it during the war. Nevertheless it is also recognized that the resources of Japan are not presently
sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and
suffering and at the present time meet its other obligations.
b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the
Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan
and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct
military costs of occupation.
In addition, respondents argue that the apologies made by Japan 8 have been satisfactory, and that Japan had
addressed the individual claims of the women through the atonement money paid by the Asian Women’s
Fund.1avvphi1
Historical Background
3
The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937, Japanese military
forces captured the city of Nanking in China and began a "barbaric campaign of terror" known as the Rape of
Nanking, which included the rapes and murders of an estimated 20,000 to 80,000 Chinese women, including young
girls, pregnant mothers, and elderly women.9 Document1zzF24331552898
In reaction to international outcry over the incident, the Japanese government sought ways to end international
condemnation10 by establishing the "comfort women" system. Under this system, the military could simultaneously
appease soldiers' sexual appetites and contain soldiers' activities within a regulated environment. 11 Comfort stations
would also prevent the spread of venereal disease among soldiers and discourage soldiers from raping inhabitants
of occupied territories.12
Daily life as a comfort woman was "unmitigated misery." 13 The military forced victims into barracks-style stations
divided into tiny cubicles where they were forced to live, sleep, and have sex with as many 30 soldiers per day.14The
30 minutes allotted for sexual relations with each soldier were 30-minute increments of unimaginable horror for the
women.15 Disease was rampant.16 Military doctors regularly examined the women, but these checks were carried
out to prevent the spread of venereal diseases; little notice was taken of the frequent cigarette burns, bruises,
bayonet stabs and even broken bones inflicted on the women by soldiers. Document1zzF48331552898
Fewer than 30% of the women survived the war.17 Their agony continued in having to suffer with the residual
physical, psychological, and emotional scars from their former lives. Some returned home and were ostracized by
their families. Some committed suicide. Others, out of shame, never returned home.18
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal responsibility and pay
compensatory damages for the comfort women system were through a series of lawsuits, discussion at the United
Nations (UN), resolutions by various nations, and the Women’s International Criminal Tribunal. The Japanese
government, in turn, responded through a series of public apologies and the creation of the AWF. 19
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by former comfort women
against the Japanese government. The Tokyo District Court however dismissed their case. 20 Other suits
followed,21but the Japanese government has, thus far, successfully caused the dismissal of every case. 22
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the comfort women system
brought their claims before the United States (US). On September 18, 2000, 15 comfort women filed a class action
lawsuit in the US District Court for the District of Columbia 23 "seeking money damages for [allegedly] having been
subjected to sexual slavery and torture before and during World War II," in violation of "both positive and customary
international law." The case was filed pursuant to the Alien Tort Claims Act ("ATCA"), 24 which allowed the plaintiffs
to sue the Japanese government in a US federal district court. 25 On October 4, 2001, the district court dismissed the
lawsuit due to lack of jurisdiction over Japan, stating that "[t]here is no question that this court is not the appropriate
forum in which plaintiffs may seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not
enjoy sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed."
The District of Columbia Court of Appeals affirmed the lower court's dismissal of the case. 26 On appeal, the US
Supreme Court granted the women’s petition for writ of certiorari, vacated the judgment of the District of Columbia
Court of Appeals, and remanded the case.27 On remand, the Court of Appeals affirmed its prior decision, noting that
"much as we may feel for the plight of the appellants, the courts of the US simply are not authorized to hear their
case."28 The women again brought their case to the US Supreme Court which denied their petition for writ of
certiorari on February 21, 2006.
Efforts at the United Nations

4
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan (KCWS), submitted a
petition to the UN Human Rights Commission (UNHRC), asking for assistance in investigating crimes committed by
Japan against Korean women and seeking reparations for former comfort women. 29 The UNHRC placed the issue
on its agenda and appointed Radhika Coomaraswamy as the issue's special investigator. In 1996, Coomaraswamy
issued a Report reaffirming Japan's responsibility in forcing Korean women to act as sex slaves for the imperial
army, and made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army during the
Second World War was a violation of its obligations under international law and accept legal responsibility
for that violation;
(b) Pay compensation to individual victims of Japanese military sexual slavery according to principles
outlined by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of
Minorities on the right to restitution, compensation and rehabilitation for victims of grave violations of human
rights and fundamental freedoms. A special administrative tribunal for this purpose should be set up with a
limited time-frame since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its possession with regard to comfort stations and
other related activities of the Japanese Imperial Army during the Second World War;
(d) Make a public apology in writing to individual women who have come forward and can be substantiated
as women victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to reflect historical realities;
(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and institutionalization of
comfort stations during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of Discrimination and
Protection of Minorities, also presented a report to the Sub-Committee on June 22, 1998 entitled Contemporary
Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict. The report
included an appendix entitled An Analysis of the Legal Liability of the Government of Japan for 'Comfort Women
Stations' established during the Second World War,30 which contained the following findings:
68. The present report concludes that the Japanese Government remains liable for grave violations of human rights
and humanitarian law, violations that amount in their totality to crimes against humanity. The Japanese
Government’s arguments to the contrary, including arguments that seek to attack the underlying humanitarian law
prohibition of enslavement and rape, remain as unpersuasive today as they were when they were first raised before
the Nuremberg war crimes tribunal more than 50 years ago. In addition, the Japanese Government’s argument that
Japan has already settled all claims from the Second World War through peace treaties and reparations agreements
following the war remains equally unpersuasive. This is due, in large part, to the failure until very recently of the
Japanese Government to admit the extent of the Japanese military’s direct involvement in the establishment and
maintenance of these rape centres. The Japanese Government’s silence on this point during the period in which
peace and reparations agreements between Japan and other Asian Governments were being negotiated following
the end of the war must, as a matter of law and justice, preclude Japan from relying today on these peace treaties to
extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of hostilities is a testament to the
degree to which the lives of women continue to be undervalued. Sadly, this failure to address crimes of a sexual
nature committed on a massive scale during the Second World War has added to the level of impunity with which
similar crimes are committed today. The Government of Japan has taken some steps to apologize and atone for the
5
rape and enslavement of over 200,000 women and girls who were brutalized in "comfort stations" during the Second
World War. However, anything less than full and unqualified acceptance by the Government of Japan of legal
liability and the consequences that flow from such liability is wholly inadequate. It must now fall to the Government
of Japan to take the necessary final steps to provide adequate redress.
The UN, since then, has not taken any official action directing Japan to provide the reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a number of
Asian women and human rights organizations, supported by an international coalition of non-governmental
organizations.31 First proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to "adjudicate Japan's
military sexual violence, in particular the enslavement of comfort women, to bring those responsible for it to justice,
and to end the ongoing cycle of impunity for wartime sexual violence against women."
After examining the evidence for more than a year, the "tribunal" issued its verdict on December 4, 2001, finding the
former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape and sexual slavery of
women.32 It bears stressing, however, that although the tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor representatives,
introduced House Resolution 121 which called for Japanese action in light of the ongoing struggle for closure by
former comfort women. The Resolution was formally passed on July 30, 2007, 33 and made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge,
apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces'
coercion of young women into sexual slavery, known to the world as "comfort women", during its colonial and
wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) would
help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister of Japan
were to make such an apology as a public statement in his official capacity; (3) should clearly and publicly refute any
claims that the sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial Army never
occurred; and (4) should educate current and future generations about this horrible crime while following the
recommendations of the international community with respect to the "comfort women." 34
In December 2007, the European Parliament, the governing body of the European Union, drafted a resolution
similar to House Resolution 121.35 Entitled, "Justice for Comfort Women," the resolution demanded: (1) a formal
acknowledgment of responsibility by the Japanese government; (2) a removal of the legal obstacles preventing
compensation; and (3) unabridged education of the past. The resolution also stressed the urgency with which Japan
should act on these issues, stating: "the right of individuals to claim reparations against the government should be
expressly recognized in national law, and cases for reparations for the survivors of sexual slavery, as a crime under
international law, should be prioritized, taking into account the age of the survivors."
The Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan. Canada's
resolution demands the Japanese government to issue a formal apology, to admit that its Imperial Military coerced
or forced hundreds of thousands of women into sexual slavery, and to restore references in Japanese textbooks to
its war crimes.36 The Dutch parliament's resolution calls for the Japanese government to uphold the 1993
declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdom’s Parliament also produced a report in November, 2008
entitled, "Global Security: Japan and Korea" which concluded that Japan should acknowledge the pain caused by
the issue of comfort women in order to ensure cooperation between Japan and Korea.
6
Statements of Remorse made by representatives of the Japanese government
Various officials of the Government of Japan have issued the following public statements concerning the comfort
system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of wartime "comfort women" since December
1991. I wish to announce the findings as a result of that study.
As a result of the study which indicates that comfort stations were operated in extensive areas for long periods, it is
apparent that there existed a great number of comfort women. Comfort stations were operated in response to the
request of the military authorities of the day. The then Japanese military was, directly or indirectly, involved in the
establishment and management of the comfort stations and the transfer of comfort women. The recruitment of the
comfort women was conducted mainly by private recruiters who acted in response to the request of the military. The
Government study has revealed that in many cases they were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military personnel directly took part in the recruitments. They lived in
misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the war areas, excluding those from Japan, those
from the Korean Peninsula accounted for a large part. The Korean Peninsula was under Japanese rule in those
days, and their recruitment, transfer, control, etc., were conducted generally against their will, through coaxing,
coercion, etc.
Undeniably, this was an act, with the involvement of the military authorities of the day, that severely injured the
honor and dignity of many women. The Government of Japan would like to take this opportunity once again to
extend its sincere apologies and remorse to all those, irrespective of place of origin, who suffered immeasurable
pain and incurable physical and psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to consider seriously, while listening to the views of
learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described above instead of evading them, and take them to heart as
lessons of history. We hereby reiterated our firm determination never to repeat the same mistake by forever
engraving such issues in our memories through the study and teaching of history.
As actions have been brought to court in Japan and interests have been shown in this issue outside Japan, the
Government of Japan shall continue to pay full attention to this matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayama’s Statement in 1994
On the issue of wartime "comfort women", which seriously stained the honor and dignity of many women, I would
like to take this opportunity once again to express my profound and sincere remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the Japanese military authorities at that time, was a grave
affront to the honor and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to all the women who
endured immeasurable and painful experiences and suffered incurable physical and psychological wounds as
comfort women.
I believe that our country, painfully aware of its moral responsibilities, with feelings of apology and remorse, should
face up squarely to its past history and accurately convey it to future generations.
7
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial rule and acts of aggression that occurred in modern world
history, and recognizing that Japan carried out such acts in the past and inflicted suffering on the people of other
countries, especially in Asia, the Members of this House hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and recently as well, and to the press. I have been
consistent. I will stand by the Kono Statement. This is our consistent position. Further, we have been apologizing
sincerely to those who suffered immeasurable pain and incurable psychological wounds as comfort women. Former
Prime Ministers, including Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort women. I
would like to be clear that I carry the same feeling. This has not changed even slightly. (Excerpt from Remarks by
Prime Minister Abe at an Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in the statement by the
Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime Minister Abe at the Budget Committee, the House
of Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who suffered hardships, and I have expressed my apologies
for the extremely agonizing circumstances into which they were placed. (Excerpt from Telephone Conference by
Prime Minister Abe to President George W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people who were taken as wartime comfort
women. As a human being, I would like to express my sympathies, and also as prime minister of Japan I need to
apologize to them. My administration has been saying all along that we continue to stand by the Kono Statement.
We feel responsible for having forced these women to go through that hardship and pain as comfort women under
the circumstances at the time. (Excerpt from an interview article "A Conversation with Shinzo Abe" by the
Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all those who suffered
extreme hardships as comfort women; and I expressed my apologies for the fact that they were forced to endure
such extreme and harsh conditions. Human rights are violated in many parts of the world during the 20th Century;
therefore we must work to make the 21st Century a wonderful century in which no human rights are violated. And
the Government of Japan and I wish to make significant contributions to that end. (Excerpt from Prime Minister
Abe's remarks at the Joint Press Availability after the summit meeting at Camp David between Prime Minister Abe
and President Bush, April 27, 2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF represented the government's concrete attempt to
address its moral responsibility by offering monetary compensation to victims of the comfort women system. 37 The
purpose of the AWF was to show atonement of the Japanese people through expressions of apology and remorse
to the former wartime comfort women, to restore their honor, and to demonstrate Japan’s strong respect for
women.38
The AWF announced three programs for former comfort women who applied for assistance: (1) an atonement fund
paying ¥2 million (approximately $20,000) to each woman; (2) medical and welfare support programs, paying ¥2.5-3
million ($25,000-$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister to each
woman. Funding for the program came from the Japanese government and private donations from the Japanese
people. As of March 2006, the AWF provided ¥700 million (approximately $7 million) for these programs in South
Korea, Taiwan, and the Philippines; ¥380 million (approximately $3.8 million) in Indonesia; and ¥242 million
(approximately $2.4 million) in the Netherlands.
8
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of Understanding for medical
and welfare support programs for former comfort women. Over the next five years, these were implemented by the
Department of Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive Department committed grave abuse
of discretion in not espousing petitioners’ claims for official apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to
espouse petitioners’ claims against Japan.
Baker v. Carr39 remains the starting point for analysis under the political question doctrine. There the US Supreme
Court explained that:
x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on question.
In Tañada v. Cuenco,40 we held that political questions refer "to those questions which, under the Constitution, are
to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political questions. 41 One such category involves questions
of foreign relations. It is well-established that "[t]he conduct of the foreign relations of our government is committed
by the Constitution to the executive and legislative--'the political'--departments of the government, and the propriety
of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." 42 The US
Supreme Court has further cautioned that decisions relating to foreign policy
are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility. 43
To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the
authority to construe or invalidate treaties and executive agreements. 44 However, the question whether the
Philippine government should espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political
branches. In this case, the Executive Department has already decided that it is to the best interest of the country to
waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such
decision is not for the courts to question. Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,45 the US Supreme Court held that "[t]he President is the
sole organ of the nation in its external relations, and its sole representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps serious
embarrassment -- is to be avoided and success for our aims achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the international field must often accord to the President a degree of
9
discretion and freedom from statutory restriction which would not be admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign
countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents
in the form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v. Executive Secretary46 and Pimentel v.
Executive Secretary;47 its overreaching principle was, perhaps, best articulated in (now Chief) Justice Puno’s
dissent in Secretary of Justice v. Lantion:48
x x x The conduct of foreign relations is full of complexities and consequences, sometimes with life and death
significance to the nation especially in times of war. It can only be entrusted to that department of government which
can act on the basis of the best available information and can decide with decisiveness. x x x It is also the President
who possesses the most comprehensive and the most confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited
access to ultra-sensitive military intelligence data. In fine, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.
The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s
foreign policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability
in this region. For us to overturn the Executive Department’s determination would mean an assessment of the
foreign policy judgments by a coordinate political branch to which authority to make that judgment has been
constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government was without authority to negotiate
the Treaty of Peace with Japan. And it is equally true that, since time immemorial, when negotiating peace accords
and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating them as national assets, and as
counters, `chips', in international bargaining. Settlement agreements have lumped, or linked, claims deriving from
private debts with others that were intergovernmental in origin, and concessions in regard to one category of claims
might be set off against concessions in the other, or against larger political considerations unrelated to debts. 49
Indeed, except as an agreement might otherwise provide, international settlements generally wipe out the
underlying private claims, thereby terminating any recourse under domestic law. In Ware v. Hylton,50 a case brought
by a British subject to recover a debt confiscated by the Commonwealth of Virginia during the war, Justice Chase
wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded, neither the
matter in dispute, nor the conduct of either party, during the war, can ever be revived, or brought into contest again.
All violences, injuries, or damages sustained by the government, or people of either, during the war, are buried in
oblivion; and all those things are implied by the very treaty of peace; and therefore not necessary to be expressed.
Hence it follows, that the restitution of, or compensation for, British property confiscated, or extinguished, during the
war, by any of the United States, could only be provided for by the treaty of peace; and if there had been no
provision, respecting these subjects, in the treaty, they could not be agitated after the treaty, by the British
government, much less by her subjects in courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly nothing new. For instance, in Dames & Moore
v. Regan,51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by nationals of one country against the government
of another country are "sources of friction" between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62
S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often entered into agreements
10
settling the claims of their respective nationals. As one treatise writer puts it, international agreements settling claims
by nationals of one state against the government of another "are established international practice reflecting
traditional international theory." L. Henkin, Foreign Affairs and the Constitution 262 (1972). Consistent with that
principle, the United States has repeatedly exercised its sovereign authority to settle the claims of its nationals
against foreign countries. x x x Under such agreements, the President has agreed to renounce or extinguish claims
of United States nationals against foreign governments in return for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these settlements were encouraged by the United States claimants
themselves, since a claimant's only hope of obtaining any payment at all might lie in having his Government
negotiate a diplomatic settlement on his behalf. But it is also undisputed that the "United States has sometimes
disposed of the claims of its citizens without their consent, or even without consultation with them, usually without
exclusive regard for their interests, as distinguished from those of the nation as a whole." Henkin, supra, at 262-263.
Accord, Restatement (Second) of Foreign Relations Law of the United States § 213 (1965) (President "may waive or
settle a claim against a foreign state x x x [even] without the consent of the [injured] national"). It is clear that the
practice of settling claims continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not necessarily for the
complete atonement of the suffering caused by Japanese aggression during the war, not for the payment of
adequate reparations, but for security purposes. The treaty sought to prevent the spread of communism in Japan,
which occupied a strategic position in the Far East. Thus, the Peace Treaty compromised individual claims in the
collective interest of the free world.
This was also the finding in a similar case involving American victims of Japanese slave labor during the war.52 In a
consolidated case in the Northern District of California,53 the court dismissed the lawsuits filed, relying on the 1951
peace treaty with Japan,54 because of the following policy considerations:
The official record of treaty negotiations establishes that a fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the possibility of future claims would be an unacceptable impediment
to a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The present peace is no exception.
On the one hand, there are claims both vast and just. Japan's aggression caused tremendous cost, losses and
suffering.
On the other hand, to meet these claims, there stands a Japan presently reduced to four home islands which are
unable to produce the food its people need to live, or the raw materials they need to work. x x x
The policy of the United States that Japanese liability for reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of Japan. During the occupation the Supreme Commander
of the Allied Powers (SCAP) for the region, General Douglas MacArthur, confiscated Japanese assets in conjunction
with the task of managing the economic affairs of the vanquished nation and with a view to reparations payments. It
soon became clear that Japan's financial condition would render any aggressive reparations plan an exercise in
futility. Meanwhile, the importance of a stable, democratic Japan as a bulwark to communism in the region
increased. At the end of 1948, MacArthur expressed the view that "[t]he use of reparations as a weapon to retard
the reconstruction of a viable economy in Japan should be combated with all possible means" and "recommended
that the reparations issue be settled finally and without delay."
That this policy was embodied in the treaty is clear not only from the negotiations history but also from the Senate
Foreign Relations Committee report recommending approval of the treaty by the Senate. The committee noted, for
example:
Obviously insistence upon the payment of reparations in any proportion commensurate with the claims of the injured
countries and their nationals would wreck Japan's economy, dissipate any credit that it may possess at present,
11
destroy the initiative of its people, and create misery and chaos in which the seeds of discontent and communism
would flourish. In short, [it] would be contrary to the basic purposes and policy of x x x the United States x x x.
We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general principle – and
particularly here, where such an extraordinary length of time has lapsed between the treaty’s conclusion and our
consideration – the Executive must be given ample discretion to assess the foreign policy considerations of
espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or
necessary.
The Philippines is not under any international obligation to espouse petitioners’ claims.
In the international sphere, traditionally, the only means available for individuals to bring a claim within the
international legal system has been when the individual is able to persuade a government to bring a claim on the
individual’s behalf.55 Even then, it is not the individual’s rights that are being asserted, but rather, the state’s own
rights. Nowhere is this position more clearly reflected than in the dictum of the Permanent Court of International
Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings
on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules
of international law. The question, therefore, whether the present dispute originates in an injury to a private interest,
which in point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is
sole claimant.56
Since the exercise of diplomatic protection is the right of the State, reliance on the right is within the absolute
discretion of states, and the decision whether to exercise the discretion may invariably be influenced by political
considerations other than the legal merits of the particular claim.57 As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting.
Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately
protected, they have no remedy in international law. All they can do is resort to national law, if means are available,
with a view to furthering their cause or obtaining redress. The municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also confer upon the national a right to demand the performance of
that obligation, and clothe the right with corresponding sanctions.1awwphi1 However, all these questions remain
within the province of municipal law and do not affect the position internationally. 58 (Emphasis supplied)
The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it is granted,
and when will it cease. It retains, in this respect, a discretionary power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the particular case.
The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully support this traditional view.
They (i) state that "the right of diplomatic protection belongs to or vests in the State," 59 (ii) affirm its discretionary
nature by clarifying that diplomatic protection is a "sovereign prerogative" of the State; 60 and (iii) stress that the state
"has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so." 61
It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her
behalf when rights are injured.62 However, at present, there is no sufficient evidence to establish a general
international obligation for States to exercise diplomatic protection of their own nationals abroad. 63 Though, perhaps
12
desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only
a moral and not a legal duty, and there is no means of enforcing its fulfillment. 641avvphi1
We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally
prohibited under contemporary international law.65 However, petitioners take quite a theoretical leap in claiming that
these proscriptions automatically imply that that the Philippines is under a non-derogable obligation to prosecute
international crimes, particularly since petitioners do not demand the imputation of individual criminal liability, but
seek to recover monetary reparations from the state of Japan. Absent the consent of states, an applicable treaty
regime, or a directive by the Security Council, there is no non-derogable duty to institute proceedings against Japan.
Indeed, precisely because of states’ reluctance to directly prosecute claims against another state, recent
developments support the modern trend to empower individuals to directly participate in suits against perpetrators of
international crimes.66 Nonetheless, notwithstanding an array of General Assembly resolutions calling for the
prosecution of crimes against humanity and the strong policy arguments warranting such a rule, the practice of
states does not yet support the present existence of an obligation to prosecute international crimes. 67 Of course a
customary duty of prosecution is ideal, but we cannot find enough evidence to reasonably assert its existence. To
the extent that any state practice in this area is widespread, it is in the practice of granting amnesties, immunity,
selective prosecution, or de facto impunity to those who commit crimes against humanity." 68
Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep
the question of whether jus cogens norms existed in 1951, petitioners have not deigned to show that the crimes
committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or
that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status
of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term
describing obligations owed by States towards the community of states as a whole. The concept was recognized by
the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very
nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be
held to have a legal interest in their protection; they are obligations erga
omnes.http://www.search.com/reference/Erga_omnes - _note-0#_note-0
Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into
the body of general international law … others are conferred by international instruments of a universal or quasi-
universal character.
The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those sharing a belief in the
emergence of a value-based international public order. However, as is so often the case, the reality is neither so
clear nor so bright. Whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to
be realized in practice.69
The term is closely connected with the international law concept of jus cogens. In international law, the term "jus
cogens" (literally, "compelling law") refers to norms that command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international norms of equivalent authority.70
Early strains of the jus cogens doctrine have existed since the 1700s, 71 but peremptory norms began to attract
greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in
International Law.72 The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC’s
preparation of the Vienna Convention on the Law of Treaties (VCLT). 73 Though there was a consensus that certain
international norms had attained the status of jus cogens,74 the ILC was unable to reach a consensus on the proper
criteria for identifying peremptory norms.
13
After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that "there
is not as yet any generally accepted criterion by which to identify a general rule of international law as having the
character of jus cogens."75 In a commentary accompanying the draft convention, the ILC indicated that "the prudent
course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the
jurisprudence of international tribunals." 76 Thus, while the existence of jus cogens in international law is undisputed,
no consensus exists on its substance,77 beyond a tiny core of principles and rules.78
Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to comprehend the
unimaginable horror they underwent at the hands of the Japanese soldiers. We are also deeply concerned that, in
apparent contravention of fundamental principles of law, the petitioners appear to be without a remedy to challenge
those that have offended them before appropriate fora. Needless to say, our government should take the lead in
protecting its citizens against violation of their fundamental human rights. Regrettably, it is not within our power to
order the Executive Department to take up the petitioners’ cause. Ours is only the power to urge and exhort the
Executive Department to take up petitioners’ cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
MARIANO C. DEL CASTILLO

Associate Justice
OCTOBER TERM, 1973
Syllabus 416 U. S.
DEFUNIS ET AL. V. ODEGAARD ET AL.
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 73-235. Argued February 26, 1974-Decided April 23, 1974
After being denied admission to a state-operated law school, peti-

tioner brought this suit on behalf of himself alone for injunctive
relief, claiming that the school's admissions policy racially discrimi-
nated against him in violation of the Equal Protection Clause of
the Fourteenth Amendment. The trial court agreed and ordered
the school to admit him in the fall of 1971. The Washington
Supreme Court reversed, holding that the school's admissions
policy was not unconstitutional. MR. JUSTICE DouGLAs, as Cir-
cuit Justice, stayed that judgment pending this Court's final
disposition of the case, with the result that petitioner was in his
final school year when this Court considered his peti :ion for
certiorari. After oral argument, the Court was informed that
petitioner had registered for his final quarter. Respondents have
assured the Court that this registration is fully effective regard-
less of the ultimate disposition of the case. Held: Because peti-
tioner will complete law school at the end of the term for which
he has registered regardless of any decision this Court might reach
on the merits, the Court cannot, consistently with the limitations
of Art. III of the Constitution, consider the substantive constitu-
tional issues, and the case is moot.
(a) Mootness here does not depend upon a "voluntary cessation"
of the school's admissions practices but upon the simple fact that
petitioner is in his final term, and the school's fixed policy to permit
him to complete the term.
(b) The case presents no question that is "capable of repetition,
yet evading review," since petitioner will never again have to go
through the school's admissions process, and since it does not
follow that the issue petitioner raises will in the future evade re-
view merely because this case did not reach the Court until the
eve of petitioner's graduation.
82 Wash. 2d 11, 507 P. 2d 1169, vacated and remanded.
Josef Diamond argued the cause for petitioners. With

him on the briefs was Lyle L. Iversen.
DEFUNIS v. ODEGAARD
312 Counsel
Slade Gorton, Attorney General of Washington, argued

the cause for respondents. With him on the brief was
James B. Wilson, Senior Assistant Attorney General.*
*Briefs of amici curiae urging reversal were filed by Milton A.
Smith, Gerard C. Smetana, and Jerry Kronenberg for the Chamber
of Commerce of the United States; by J. Albert Woll, Laurence Gold,
and Thomas E. Harris for the American Federation of Labor and
Congress of Industrial Organizations; by Theodore R. Mann for
the American Jewish Congress; by David I. Caplan for the Jewish
Rights Council; by Anthony J. Fornelli, Thaddeus L. Kowalski,
and Samuel Rabinove for the Advocate Society et al.; and by
Alexander M. Bickel, Philip B. Kurland, Larry M. Lavinsky, and
Arnold Forster for the Anti-Defamation League of B'nai B'rith.
Briefs of amici curiae urging affirmance were filed by William J.
Brown, Attorney General, and Andrew J. Ruzicho, Earl M. Manz,
and Stephen J. Simmons, Assistant Attorneys General, for the State
of Ohio; by John P. Harris for the city of Seattle; by Fletcher N.
Baldwin, Jr., and Chesterfield Sm'ith for the American Bar Assn.;
by Archibald Cox, James N. Bierman, James A. Sharaf, and Daniel
Steiner for the President and Fellows of Harvard College; by J. Harold
Flannery for the Center for Law and Fducation, Harvard University;
by Frank Askin and Norman Amaker for the Board of Governors
of Rutgers, the State University of New Jersey, et al.; by Edgar
S. Cahn and Jean Camper Cahn for the Deans of the Antioch School
of Law; by Erwin N. Griswold and Clifford C. Alloway for the Asso-
ciation of American Law Schools; by John Holt Myers for the
Association of American Medical Colleges; by Howard A. Glick-
stein for a Group of Law School Deans; by Harry B. Reese and
Peter Martin for the Law School Admission Council; by Sanford Jay
Rosen, Herbert Teitelbaum, and Melvin L. Wulf for the Mexi-
can American Legal Defense and Educational Fund et al.; by Cruz
Reynoso and Robert B. M cKay for the Council on Legal Education
Opportunity; by Roswell B. Perkins, Kenneth C. Bass III, David
S. Tatel, and R. Stephen Browning for the Lawyers' Committee for
Civil Rights Under Law; by Jack Greenberg, James M. Nabrit III,
Charles Stephen Ralston, Jeffry A. Mintz, Louis H. Pollak, and
John Baker for the NAACP Legal Defense and Educational Fund,
Inc.; by Derrick A. Bell, Jr., for the National Conference of Black
Lawyers; by 'Brue R. Greene and Herbert Becker for the American
Indian 'Law Students Assn., Inc., et al.; by Clifford Sweet, C. Lyonel
OCTOBER TERM, 1973
Per Curiam 416 U. S.
PER CURIAM.
In 1971 the petitioner Marco DeFunis, Jr.,1 applied for
admission as a first-year student at the University of
Washington Law School, a state-operated institution.
The size of the incoming first-year class was to be limited
to 150 persons, and the LaW School received some 1,600
applications for these 150 places. DeFunis was eventu-
ally notified that he had been denied admission. He
thereupon commenced this suit in a Washington trial
court, contending that the. procedures and 'criteria em-
ployed by the Law School Admissions Committee in-
vidiously discriminated against him on account of his
race in violation of the -Equal Protection Clause
of the Fourteenth Amendment to the United States
Constitution.
DeFunis brought the suit on behalf of himself alone,
and not as the representative of any class, against the
various respondents, who are officers, faculty members,
and members of the Board of Regents of the University
of Washington. He asked the trial court to issue a
mandatory injunction commanding the respondents to
admit him as a member of the first-year class entering
in. September 1971, on the ground that the Law School
admissions policy had resulted in the unconstitutional
denial of his application for admission. The trial court
agreed with his claim and granted the requested relief.
Jones, Dennis R. Yeager, E. Richard LafsQn, Nathaniel R. Jones,

Michael H. Terry, Joseph A. Matera, and C. Christopher Brown
for the Legal Aid Society of Alameda County et al.; by Peter Van
N. Lockwood, David Bonderan, Sylvia Roberts, and David.Rubin
for the National Organization for Women Legal Defense and Edu-
catioxn Fund, Inc., et al.; and by Joseph L. Rauh, Jr., for the Na-
tional Council of Jewish Women et al.
1 Also included as petitioners are DeFunis' parents and his wife.
Hereafter, the singular form "petitioner" is used.
DEFUNIS v. ODEGAARD
312 Per Curiam
DeFunis was, accordingly, admitted to the Law School

and began his legal studies there in the fall of 1971.
On appeal, the Washington Supreme Court reversed the
judgment of the trial court and held that the Law School
admissions policy did not violate the Constitution. By
this time DeFunis was in his second year at the Law
School.
He then petitioned this Court for a writ of certiorari,
and MR. JUSTICE DOUGLAS, as Circuit Justice, stayed the
judgment of the Washington Supreme Courtdpending
the "final disposition of the case by this Court." By
virtue of this stay, DeFunis has remained in law school,
and was in the first term of his third and final year when
this Court first considered his certiorari petition in the
fall of 1973. Because of our concern that DeFunis'
third-year standing in the Law School might have ren-
dered this case moot, we requested the parties to brief
the question of mootness before we acted on the petition.
In response, both sides contended that the case was not
moot. The respondents indicated that, if the decision
of the Washington Supreme Court were permitted to
stand, the petitioner could complete the term for which
he was then enrolled but would have to apply to the
faculty for permission to continue in the school before
2
he could register for another term.
We granted the petition for certiorari on November 19,
1973. 414 U. S.1038. The case was in due course orally
argued on February 26, 1974.
In response to questions raised from the bench during
the cral argument, counsel for the petitioner has informed
the Court that DeFunis has now registered "for his final
2 By contrast, in their response to the petition for certiorari, the
respondents had stated that DeFunis "will complete his third year
[of law school] and be awarded his J. D. degree at the end of the
1973-74 academic year regardless of the outcome of this appeal."
OCTOBER TERM, 1973
quarter in law school." Counsel for the respondents

have made clear that the Law School will not in any
way seek to abrogate this registration! In light of
DeFunis' recent registration for the last quarter of his
final law school year, and the Law School's assurance
that his registration is fully effective, the insistent ques-
tion again arises whether this case is not moot, and to
that question we now turn.
The starting point for analysis is the familiar proposi-
tion that "federal courts are without power to decide
questions that cannot affect the rights of litigants in the
case before them." North Carolinav. Rice, 404 U. S. 244
246 (1971). The inability of the federal judiciary "to
review moot cases derives from the requirement of Art.
III of the Constitution under which the exercise of judi-
cial power depends upon the existence of a case or con-
troversy." Liner v. Jalco, Inc., 375 U. S. 301, 306 n. 3
(1964); see also Powell v. McCormack, 395 U. S. 486,
496 n. 7 (1969); ,ibron v. New York, 392 U. S. 40, 50
n. 8 (1968). Although as a matter of Washington state
law it appears that this case would be saved from moot-
ness by "the great public interest in the continuing issues
raised by this appeal," 82 Wash. 2d 11, 23 n. 6, 507 P. 2d
1169, 1177 n. 6 (1973), the fact remains that under Art. III
"[e]ven in cases arising in the state-courts, the ques-
tion of mootness is a federal one which a federal court
must resolve before it assumes jurisdiction." North
Carolina v. Rice, supra, at 246.
The respondents have represented that, without regard
to the ultimate resolution of the issues in this case,
3 In their memorandum on the question of mootness, counsel for
the respondents unequivocally stated: "If Mr. DeFunis registers
for the spring quarter under the existing order of this court during
the registration period from February 20, 1974, to March 1, 1974,
thatregistration would not be canceled unilaterally by the university
regardless of the outcome of this litigation."
DEFUNIS v. ODEGAARD
312 Per Curiam
DeFunis will remain a student in the Law School for the

duration of any term in which he has already enrolled.
Since he has now registered for his final term, it is evident
that he will be given an opportunity to complete 411
academic and other requirements for graduation, and, if
he does so, will receive his diploma regardless of any
decision this Court might reach on the merits of this case.
In short, all parties agree that DeFunis is now entitled
to complete his legal studies at the University of Wash-
ington and to receive his degree from that institution.
A determination by this Court of the legal issues tendered
by the parties is no longer necessary to compel that result,
and could not serve to prevent it. DeFunis did not cast
his suit as a class action, and the only remedy he
requested was an injunction commanding his admission
to the Law. School. He was not only accorded that
remedy, but he now has also been irrevocably admitted
to the final term of the final year of the Law School course.
The controversy between the parties has thus clearly
ceased to be "definite and concrete" and no longer
"touch[es] the legal relations of parties having adverse
legal interests." Aetna Life Ins. Co. v. Haworth, 300
U. S. 227, 240-241 (1937).
It matters not that these circumstances partially stem
from a policy decision on the part of the respondent Law
School authorities. The respondents, through their
counsel, the Attorney General of the State, have profes-
sionally represented that in no event will the status of
DeFunis now be affected by any view this Court might
express on the merits of this controversy. And it has
been the settled practice of the Court, in contexts no less
significant, fully to accept representations such as these
as parameters for decision. See Gerende v. Election
Board, 341 U. S.56 (1951); Whitehill v. Elkins, 389 U. S.
54, 57-58 (1967); Ehlert v. United States, 402 U. S.99.
536-272 0 - 75 - 25
OCTOBER TERM, 1973
107 (1971); cf. Law Students Research Council v. Wad-

mond, 401 U. S. 154, 162-163 (1971). --
There is a line of decisions in this Court standing for
the proposition that the "voluntary cessation of allegedly
illegal conduct does not deprive the tribunal of power to
hear and determine the case, i. e., does not make the case
moot." United States v. W. T. Grant Co., 345 U. S. 629,
632 (1953); United States v. Trans-Missouri Freight
Assn., 166 U. S. 290, 308-310 (1897); Walling v. Helme-
rich & Payne, Inc., 323 U. S. 37, 43 (1944); Gray v.
Sanders, 372 U. S. 368, 376 (1963); United States v.
Phosphate Export Assn., 393 U. S. 199, 202-203 (1968).
These decisions-and the doctrine they reflect would be
quite relevant if the question of mootness here had arisen
by reason of a unilateral change in the admissions proce-
dures of the Law School. For it was the admissions pro-
cedures that--were the target of this' litigation, and a
voluntary cessation of the admissions practices com-
plained of could make this case moot only if it
could be said with assurance "that 'there is no rea-
sonable expectation- that the wrong will be repeated.'"
United States v. W. T. Grant Co., supra, at 633. Other-
wise, "[t]he defendant is free to retturn to his old ways."
id., at 632, and this fact would be enough to prevent
mootness because of the "public interest in having the
legality of the practices settled." Ibid. But moot-
ness in-the present case depends not at all upon a "volun-
tary cessation" of the admissions practices that were the
subject of this litigation. It depends, instead, upon the
simple fact that DeFunis is now in the final quarter of
the final year of his course of study, and the settled and
unchallenged policy of the Law School to permit him to
complete the term for which he is now enrolled.
It might also be suggested that this case presents
a question that is "capable of repetition, yet evading
DEFUNIS v. ODEGAARD
312 Per Curiam
review," Southern Pacific Terminal Co. v. ICC, 219 U. S.

498, 515 (1911); Roe v. Wade, 410 U. S. 113, 125 (1973),
and is thus amenable to federal adjudication even
though it might otherwise be considered moot. But
DeFunis will never again be required to run the gantlet
of the Law School's admission process, and so the ques-
tion is certainly not "capable of repetition" so far as he
is concerned. Moreover, just because this particular case
did not reach the Court until the eve of the petitioner's
graduation from law school, it hardly follows that the
issue he raises will in the future evade review. If the
admissions procedures of the Law School remain un-
changed,4 there is.no reason to suppose that a subsequent
case attacking those procedures will not come with rela-
tive speed to this Court, now that the Supreme Court of
Washington has spoken. This case, therefore, in no way
presents the exceptional situation in which the Southern
Pacific Terminal doctrine might permit a departure from
"[t]he usual rule in federal cases.., that an actual con-
troversy must exist at stages of appellate or certiorari
review, and not simply at the date the action is initiated."
Roe v. Wade, supra, at 125; United States v. Munsing-
wear, Inc., 340 U. S. 36 (1950).
Because the petitioner will complete his law school
studies at the end of the term for which he has now
registered regardless of any decision *this Court might
reach on the merits of this litigation, we conclude that
the Court cannot, consistently with the limitations of
4 In response to an inquiry from the Court, counsel for the
respondents has advised that some changes have been made in
the admissions' procedures "for the applicants seeking admission
to the University of Washington law school for the academic year
commencing September, 1974." The respondents' counsel states,
however, that "[these] changes do not affect the policy challenged by
the petitioners . . .in that . . .special consideration still is given
to applicants from 'certain ethnic groups.'"
OCTOBER TERM, 1973
DOUGLAS, J., dissenting - .416 U. S.
Art. III of the Constitution, consider the substantive

constitutional issues tendered by the parties.' Accord-
ingly, the judgment of the Supreme Court of Washing-
ton is vacated, and the .cause is remanded for such
proceedings as by that court may be deemed appropriate.
It is so ordered.
MR. JUSTICE DOUGLAS, dissenting.

I agree with MR. JUSTICE BRENNAN that this case is
not moot, and because of the significance of the issues
raised I think it is important to reach the merits.
The University of Washington Law School received

1,601 applications for admission to its first-year class
beginning in September 1971. There were spaces avail-
able for only about 150 students, but in order to enroll
this number the school eventually offered admission to
275 applicants. All applicants were put into two groups,
one of which was considered under the minority admis-
sions program. Thirty-seven of those offered admission
had indicated on an optional question on their applica-
tion that their "dominant" ethnic origin was either black,
Chicano, American Indian, or Filipino, the four groups
included iii the miihurity admissions program. Answers
to this optional question were apparently the sole basis
SIt is suggested in dissent that '[a]ny number of unexpected

events-illness, economic necessity, even academic failure-might
prevent his graduation at the end of the term." Post, at 348.
"Bunt such speculative contingencies afford no basis for our passing
on -the substantive issues [the petitioner] would have us decide,"
Hall v. Beals, 396 U. S. 45, 49 (1969), in the absence of "evidence
that this is a prospect of 'immediacy and reality.'" Golden v.
Zwickler, 394 U. S. 103, 109 (1969); Maryland Casualty Co. v.
Pacific Coal & Oil Co., 312 U. 5. 270, 273 (1941).
DzFUNIS v. ODEGAARD
312 DOUGLAS, J., dissenting
upon which eligibility for the program was determined.

Eighteen of these 37 actually enrolled in the Law School.
In general, the admissions process proceeded as follows:
An index called the Predicted First Year Average (Aver-
age) was calculated for each applicant on the basis of
a formula combining the applicant's score on the Law
School Admission Test (LSAT) and his grades in his
last two years in college.' On the basis of its experi-
ence with previous years' applications, the Admissions
Committee, consisting of faculty, administration, and
students, concluded that the most outstanding applicants
were those with averages above 77; the highest average
of any applicant was 81. Applicants with averages
above 77 were considered as their applications arrived
by random distribution of their files to the members of
the Committee who would read them and report their
recommendations back to the Committee. As a result of
the first three Committee meetings in February, March,
and April 1971, 78 applicants from this group were ad-
mitted, although virtually no other applicants were of-
fered admission this early.' By the final conclusion of
The grades are calculated on a conventional 4.0 scale, and the

.LSAT is scored on a scale ranging from 200 to 800. A Writing Test
given on the same day as the LSAT and administered with it is also
included in the formula; it is scored on a scale of 20 to 80. The
Admissions Committee combines these scores into the Average by
calculating the sum of 51.3, 3.4751 X the grade-point average,
.0159 X LSAT score, and .0456 X×the Writing Test score. App. 24.
For a brief discussion of the use of the LSAT in combination with
undergraduate grades to predict law school success, see Winter-
bottom, Comments on "A Study of the Criteria for Legal Education
and Admission to the Bar," An Article by Dr. Thomas M. Gaolsby,
Jr., 21 J. Legal Ed. 75 (1968).
2 The only other substantial group admitted at this point were 19
"militar " applicants. These were students who had previously been
admitted to the-school but who had either been unable to come, or
forced to leave during their tenure, because of the draft. They were
OCTOBER TERM, 1973
DouGLAs, J., dissenting 416 U. S.
the admissions process in August 1971, 147 applicants

with averages above 77 had been admitted, including
all applicants with averages above 78, and 93. of 105
applicants with averages between 77 and 78.
Also beginning early in the admissions process was
the culling out of applicants with averages below 74.5.
These were reviewed by the Chairman of the Admissions
Committee, who had the authority to reject them sum-
marily without further consideration by the rest of the
Committee. A small number of these applications were
saved by the Chairman for Committee consideration on
the basis of information in the file indicating greater
promise than suggested by the Average. Finally during
the early months the Committee accumulated the appli-
cations of those with averages between 74.5 and 77 to
be considered at a later time when most of the applica-
tions had been received and thus could be compared
with one another. Since DeFunis' average was 76.23,
he was in this middle group.
Beginning in their May meeting the
Committee con-
sidered this middle group of applicants, whose folders
had been randomly distributed to Committee. members
for their recommendations to the Committee. Also con-
sidered at this time were remaining applicants with aver-
ages below 74.5 who had not been summarily rejected,
and some of those with averages above 77 who had not
been sWmmarily admitted, but instead held for further
consideration. Each Committee member would consider
the applications .competitively, following rough guide-
given preferential treatment upon reapplication after completing

their military obligation. Since neither party has raised any issue
concerning this group of applicants, the remaining consideration of
the admissions procedure will not discuss them. Four minority appli-
cants were also admitted at this time, although none apparently
had scores above 77. App. 31. Their admission was presumably
pursuant to the procedure for minority applicants described below.
DEFUNIS v. ODEGAARD
312 DoUGLAS, J., dissenting
lines as to the proportion who could be offered admission.

After the Committee had extended offers of admission to
somewhat over 200 applicants, a waiting list was con-
structed in the same fashion, and was-divided into four
groups ranked by the Committee's assessment of their
applications. DeFunis was on this waiting list, but was
ranked in the lowest quarter. He was ultimately told
in August 1971 that there would be no room for him.
Applicants who had indicated on their application
forms that they were either black, Chicano, American
Indian, or Filipino Were treated differently in several re-
spects. Whatever their Averages, none were given to
the Committee Chairman for consideration of summary
rejection, nor were they distributed randomly among
Committee members for consideration along with the
other applications. Instead, all applications of black
students were assigned separately to two particular Com-
mittee members: a first-year blacklaw student on the
Committee, and a professor on the Committee who had
worked the previous summer in a special program for
disadvantaged college students considering application to
the Law School. 3 Applications from among the other
three minority groups were assigned to an assistant dean
who was on the Committee. The minority applications.
while considered competitively with one another, were
never directly compared to the remaining applications,
either by the subcommittee or by the full Committee.
As in the admissions process generally, the Committee
sought to find "within the minority category, those per-
sons who we thought had the highest probability of
3 This was a Council on Legal Education Opportunities program,

federally funded by the Office of Economic Opportunity and spon-
sored by the American Bar Association,. the Association of American
Law Schools, the National Bar Association, and the Law School
Admissions Council.
OCTOBER TERM, 1973
DOUGLAS, J., dissenting 416 U. S.
succeeding in Law School." ' In reviewing the minority

applications, the Committee attached less weight to the
Average "in making a total judgmental evaluation as to
the relative ability of the particular applicant to succeed
in law school." 82 Wash. 2d 11, 21, 507 P. 2d 1169,
1175. In its publicly distributed Guide to Applicants,
the Committee explained that "[a]n applicant's racial or
ethnic background was considered as one factor in our
general attempt to convert formal credentials into real-
istic predictions."
Thirty-seven minority applicants were admitted under
this procedure. Of these, 36 had Averages below DeFunis'
76.23, and 30 had Averages below 74.5, and thus would
ordinarily have been summarily rejected by the Chair-
man. There were also 48 nonminority applicants admitted
who had Averages below DeFunis. Twenty-three of
these were returning veterans, see n. 2, supra,and 25 were
others who presumably were admitted because of other
Testimony of the Chairman of the Admissions Committee, State-

ment of Facts 353.
5The Guide to Applicants explained:
"We gauged the potential for outstanding performance in law
school not only from the existence .f high test scores and grade
point averages, but also from eareful- analysis of recommendations,
the quality of work in difficult analytical seminars, courses, and
writing programs, the academic standards of the school attended by
the applicant, the applicant's graduate work (if any), and the nature
of the applicant's employment (if any), since graduation.
"An applicant's ability to make significant contributions to law
school classes and the community at large was assessed from such
factors as his extracurricular and community activities, employment,
and general background.
"We gave no preference to, but did not discriminate against,
either Washington residents or women in making our determinations.
An applicant's radial or ethnic background was considered as one
factor in our general attempt to convert formal credentials into
realistic predictions." 82 Wash. 2d 11, 18-19, 507 P. 2d 1169, 1174.
DEFUNIS v. ODEGAARD
factors in their applications that made them attractive

candidates despite their relatively low Averages.
It is reasonable to conclude from the above facts that
while other factors were considered by the Committee,
and were on occasion crucial, the Average was for most
applicants a heavily weighted factor, and was at the ex-
tremes virtually dispositive." A different balance was
apparently struck, however, with regard to the minority
applicants. Indeed, at oral argument, the respondents'
counsel advised us that were the minority applicants con-
sidered under the same procedure as was generally used,
ncne of those who eventually enrolled at the Law School
would have been admitted.
The educational policy choices confronting a university
admissions committee are not ordinarily a subject for
judicial oversight; clearly it is not for us but for the law
,r-hool to decide which tests to employ, how heavily to
weigh recommendations from professors or undergraduate
grades, and what level of achievement on the chosen cri-
teria are sufficient to demonstrate that the candidate is
qualified for admission. What places this case in a spe-
cial category is the fact that the school did not choose
one set of criteria but two, and then determined which to
apply to a given applicant on the basis of his race. The
6The respondents provided the following table in response to an
interrogatory during the proceedings in the state court:
Predicted' Number of Number
First Year Averages Applications Received Accepted
81 1 1
80 2 2
79 11 11
78 42 42
77 105 93
76 169 53
75 210 22
App. 34.
OCTOBER TERM, 1973
Committee adopted this policy in order to achieve "a rea-

sonable representation" of minority groups in the Law
School. 82 Wash. 2d, at '20, 507 P. 2d, at 1175. Al-
tho gh it may be speculated that the Committee sought
to rectify what it perceived to be cultural or racial biases
in thbeSAT or in the candidates' undergraduate records,
the :ecoTa in this case is devoid of any evidence of such
bias, and the school has not sought to justify its pro-
codures on this basis.
Although testifying that "[w]e do not have a quota..
the Law School dean explained that "[w]e want a reason-
able representation. We will go down to reach it if we
can," without "taking people who are unqualified in
an absolute sense . . . ." Statement of Facts 420: By
"unqualified in an absolute sense" the dean meant candi-
dates who "have no reasonable probable likelihood of hav-
ing a chance of succeeding in the study of law . ..."
Ibid. But the dean conceded that in "reaching," the
school does take "some minority students who at least,
viewed as a group, have a less such likelihood than the
majority student group taken as a whole." Id., at 423.
"Q. Of those who have made application to go to
the law school, I am saying you are not taking the
best qualified?
"A. In total?
"Q. In total.
"A. In using that definition, yes." Id., at 423-
424.
It thus appears that by the Committee's own assess-
ment, it admitted minority students who, by the tests
given, seemed less qualified than some white students
w lo were not accepted, in order to achieve a "reasonable
representation." In this regard it may be pointed out
that for the year. 1969-1970--two years before the class
to which DeFunis was seeking admission-the Law School
DEFUNIS v. ODEGAARD
reported an enrollmdnt of eight black students out of

a total of 356.' Defendants' Ex. 7. That percentage,
approximately 2.2%, compares to a percentage of blacks
in the population of Washington of approximately 2.1%.S
II
There was a time when law schools could follow tho,
advice of Wigmore, who believed that "the way to find
out whether a boy has the makings of a competent lawyer
is to see what he can do in a first year of law studies."
Wigmore, Juristic Psychopoyemetrology-Or, How to
Find Out Whether a Boy Has the Makings of a Lawyer,
24 Ill. L. Rev. 454, 463-464 (1929). In those days there
were enough spaces to admit every applicant who met
minimal credentials, and they all could be given the op-
portunity to prove themselves at law school. But by
the 1920's many law schools found that they could not
admit all minimally qualified applicants, and some selec-
tion process began.' The pressure to use some kind. of
admissions test mounted, and a number of schools insti-
tuted them. One early precursor to the modern day
LSAT was the Ferson-Stoddard Law Aptitude examina-
tion. Wigmore conducted his own study of that test
with 50 student volunteers, and concluded that it "had'
no substantial practical value." Id., at 463. But his
conclusions were not accepted, and the harried law
I Although there is apparently no evidence in point in the record,

respondents suggest that at least some of these eight students
were also admitted on a preferential basis. Brief for Respondents
40 n. 27.
8 United States Bureau of the Census, Census of Population: 1970,
General Population Characteristics, Washington, Final Report PC
(l)-B49, Table 18.
9For a history of gradual acceptance among law schools of
standardized tests as an admission tool, see Ramsey, Law School
Admissions: Science, Art, or Hunch?, 12 J. Legal Ed. 503 (1960).
OCTOBER TERM, 1C73
schools still sought some kind of admissions test which

would simplify the process of judging applicants, and ,in
1948 the LSAT was born. It has been with us ever
since.1"
The test purports to predict how successful the appli-
cant will be in his first year of law school, and consists of
a few hours' worth of multiple-choice questions. But the
answers the student can give to a multiple-choice ques-
tion are limited by the creativity and intelligence of the
test-maker; the student with a better or more original
understanding of the problem than the test-maker may
realize that none of the alternative answers are any good,
but there is no way for him to -demonstrate his under-
standing. "It is obvious from the nature of the tests
that they do not give the candidate a significant oppor-
tunity to express himself. If he is subtle in his choice
of answers it will go against him; and yet there is no
other way for him to show any individuality. If he is
strong-minded, nonconformist, unusual, original, or crea-
tive-as so many of the truly important people are-he
must stifle his impulses and conform as best he can to
the niorms that the multiple-choice testers set up in their
unimaginative, scientific way. The more profoundly
gifted the candidate is, the more his resentment will rise
against the mental strait jacket into which the testers
would force his mind." B. Hoffmann, The Tyranny of
Testing 91-92 (1962).
Those who make the tests and the law schools which
use them point, of course, to the high correlations be-
tween the test scores and the grades at law school the
first year. E. g., Winterbottom, Comments on "A Study
of the Criteria for Legal Education and Admission to the
10 For a survey of the use of the LSAT by American law schools
as of 1965, see unneborg & Radford, The LSAT: A Survey of
Actual Practice, 18 J'Legal Ed. 313 (1966).
DEFUNIS v. ODEGAARD
Bar," An Article by Dr. Thomas M. Goolsby, Jr., 21 J.

Legal Ed. 75 (1968).. Certainly the. tests do seem to do
better than chance. But they do not have the value that
their deceptively precise scoring system suggests. The
proponents' own data show that, for example, most of
those scoring in the bottom 20% on the test do better than
that in law school-indeed six of every 100 of them will
be in the top 20% of their law school class. Id., at 79.
And no one knows how many of those who were not
admitted because of their test scores would in fact have
done well were they given the chance. There are many
relevant factors, such as motivation, cultural backgrounds
of specific minorities that the test cannot measure, and
they inevitably must impair its value as a predictor. 1
Of course, the law school that admits only thoe with
the highest test scores finds that on the average they do
much better, and thus the test is a convenient tool for
the admissions committee. The price is paid by the able
student who for unknown reasons did not achieve that
high score-perhaps even the minority with a different
cultural background. Some tests, at least in the past,
have been aimed at eliminating Jews.
The school can safely conclude that the appli-
cant with a score of 750 should be admitted before one
with a score of 500. The problem is that in many cases
the choice will be between 643 and 602 or 574 and 528.
The numbers create an illusion of difference tending to
overwhelm other factors. "The wiser testers are well
aware of the defects of the multiple-choice format and
the danger of placing reliance on any one method of
assessment to the exclusion of all others. What is dis-
tressing is how little their caveats have impressed the
people who succumb to the propaganda of the test-
" Rock, Motivation, Moderators, and Test Bias, 19' IT. Tel. L.
Rev. 527, 535.
OCTOBER TERM, 1973
makers and use these tests mechanically as though they

were a valid substitute for judgment." Hoffmann, supra,
at 215.
Of course, the tests are not the only thing considered;
here they were combined with the prelaw grades to pro-
duce a new number called the Average. The grades
have their own problems; one school's A is another
school's C. And, even to the extent that this formula
predicts law school grades, its value is limited.
The law student with lower grades may in the long
pull of a legal career surpass those at the top of the
class. "[L]aw school admissions criteria have operated
within a hermetically sealed system; it is nosy beginning
to leak. The traditional combination of LSAT and GPA
[undergraduate grade point average] may have provided
acceptable predictors of likely performance in law school
in the past .... [But] [t]here is no clear evidence that
the "LSAT and GPA provide particularly good evaluators
of the intrinsic or enriched ability of an individual to
perform as a law student or lawyer in a functioning
society undergoing change. Nor is there any clear evi-
dence that grades and other evaluators of law school
performance, and the bar examination, are particularly
good predictors of competence or success as a lawyer."
Rosen, Equalizing Access to Legal Education: Special
Programs for Law Students Who Are Not Admissible by
Traditional Criteria, 1970 U. Tol. L. Rev. 321, 332-333.
But, by whatever techniques, the law school must
make choices. Neither party has challenged the validity
.of the Average employed here as an admissions
tool, and therefore consideration of its possible de-
ficiencies is not presented as an issue. The Law
School presented no evidence to show that adjustments
in the process employed were used in order validly
to compare applicants of - different races;, instead,
it chose to avoid making such comparisons. Finally,
DFUNIS v. ODEGAARD
although the Committee did consider other information

in the files of all applicants, the Law School has made
no effort to show that it was because of these additional
factors that it admitted minority applicants who would
otherwise have been rejected. To the contrary, the
school appears to have conceded that by its own assess-
ment-taking all factors into aCcount-it admitted minor-
ity applicants who would have been rejected had they
been white. We have no choice but to evaluate the Law
School's case as it has been made.
III
The Equal Protection Clause did not enact a require-
ment that law schools employ as the sole criterion for
admissions -a formula based upon the LSAT and under-
graduate grades, nor does it prohibit law schools from
evaluating an applicant's prior achievemetits in light of
the barriers that he had to overcome. A black appli-
cant who pulled himself out of the ghetto into a junior
college may thereby demonstrate a level of motivation,
perseverance, and ability that would lend Li fairminied
admissions committee to '.onclude that he shows more
promise for law study tian the son of a rich alumnus
who achieved better grades at Harvard. That applicant
would be offered admission not because he is black,
but because as an individual he has shown he, has the
potential, while the Harvard man may have taken less
advantage of the vastly superior opportunities offered
him. Because of the weight of. the. prior handicaps,
that black applicant may not realize hi full potential
in the first year of law school, or even in the full three
years, but in the long pull of a legal career his achieve-
ments may far outstrip those of his classmates whose
esrlier records appeared superior by conventional criteria.
There is currently no test available to the Admissions
OCTOBER TERM, 1973
Committee that can predict such possibilities with assur-

ance, but the Committee may nevertheless seek to gauge
it as best it can, and weigh this factor in its decisions.
Such a policy woull not be limited to blacks, or Chicanos
or Filipinos, or American Indians, although undoubtedly
groups such as these may in practice be the principal
beneficiaries of it. But a poor Appalachian white, or a
second generation Chinese in San Francisco, or some
other American whose lineage is so diverse as to defy
ethnic labels, may demonstrate similar potential and thus
he accordetd favorable consideration by the Committee.
The difference between such a policy and the one pre-
sented by this case is that the Committee would be mak-
ing decisions on the basis of individual attributes, rather
than according a preference solely on the basis of race.
To be sure, the racial preference here was not absolute-
the Committee did not admit all applicants from the
four favored groups. But it did accord all such appli-
cants a preference by applying, to an extent not precisely
ascertainable from the record, different standards by
which to judge their applications, with the result that
the Committee admitted minority applicants-who, in the
school's own judgment, were less promising than other
applicants who were rejected. Furthermore, it is ap-
parent that because the Admissions Committee com-
pared minority applicants only with one another, it was
necessary to reserve some proportion of the class for
them, even if at the outset a precise number of places
were not set aside." That proportion, apparently 15% to
-'1Atthe outset the Committee may have chosen only a range,.

with the precise number to be determined later in the process as
the total number of minority applicants, and some tentative assess-
ment of their quality, could be determined. This appears to be
the current articulated policy, see App. to this opinion § 6, and we
are advised by the respondents that § 6 "represents a more formal
statement of the policy which was in effect in 1971 .. .but does not
DEFUNIS v. ODEGAARD
20%, was chosen because the school determined it to be

"reasonable," "3 although no explanation is provided as
to how that number rather than some other was found
appropriate. Witbout becoming embroiled in a seman-
tic debate over whether this practice constitutes a
"quota," it is clear that, given the limitation on the
total number of applicants who could be accepted, this
policy did reduce the total number of places for which
DeFunis could compete-solely on account of his race.
Thus, as the Washington Supreme Court concluded,
whatever label one wishes to apply to it, "the minority
admissions policy is certainly not benign with respect
to nonminority students who are displaced by it." 82
Wash. 2d, at 32, 507 P. 2d, at 1182. A finding that the
state school employed a racial classification in selecting
its students subjects it to the strictest scrutiny under the
Equal Protection Clause.
The consideration of race as a -measure of an appli-
cant's qualification normally introduces a capricious and
irrelevant factor working an invidious discrimination,
Anderson v. Martin, 375 U. S. 399, 402; Loving v. Vir-
ginia, 388 U. S. 1, 10; Harper v. Virginia Board of Elec-
tions, 383 U. S. 663, 668. Once race is a starting point
educators and courts are immediately embroiled in com-
peting claims of different racial and ethnic groups that
would make difficult, manageable standards consistent
represent any change in policy." Letter to the Court dated March 19,
1974, p. 1. The fact that the Committee did not set a precise number
in advance is obviously irrelevant to the legal analysis. Nor does
it matter that there is some minimal level of achievement below
which the Committee would not reach in order to achieve its stated
goal as to the proportion of the class reserved for minority groups,
so long as the Committee was willing, in order to achieve that goal,
to admit minority applicants who, in the Committee's own judgment,
were less qualified than other rejected applicants and who would
not otherwise have been admitted.
13 See n. 12, supra, and App. to this opinion § 6.
536-272 0 - 75 - 26
OCTOBER TERM, 1973
with the Equal Protection Clause. "The clear and

central purpose of the Fourteenth Amendment was to
eliminate all official state sources of invidious racial
discrimination in the States." Loving, supra, at 10.
The Law School's admissions policy cannot be reconciled
with that purpose, unless cultural standards of a diverse
rather than a homogeneous society are taken into
account. The reason is that professional persons, par-
ticularly lawyers, are not selected for life in a computer-
ized society. The Indian who walks to the beat of Chief
Seattle of the Muckleshoot Tribe in Washington 14 has a
different culture from examiners at law, schools.
The key to the problem is the consideration of each
application in a racially noutral way. Since the LSAT
reflects questions toucding on cultural backgrounds, the
Admissions Committee acted properly in my view in
setting minority applications apart for separate process-
ing. These minorities have cultural backgrounds that
are vastly different from the dominant Caucasian.
Many Eskimos, American Indians, Filipinos, Chicanos,
Asian Indians, Burmese, and Africans come from such.
disparate backgrounds that a test sensitively tuned for
most applicants would be wide of the mark for many
minorities.
The melting pot is not designed to homogenize people,
making them uniform in consistency. The melting pot
as I understand it is a figure of speech that depicts the
wide diversities tolerated by the First Amendment under
one flag. See 2 S. Morison & H. Commager, The Growth
of the American Republic, c. VIII (4th ed. 1950). Mi-
norities in our midst who arc to serve actively in our pub-
lic affairs should be chosen on talent and character alone,
not on cultural orientation or. leanings.
14 Uncommon Controversy, Report Prepared for American Friends
Service Committee 29-30 (1970).
DFFUNIS v. ODEGAARD
312 DouoLAs, J., dissenting
I do know, coming as I do from Indian country in

Washington, that many of the young Indians know little
about Adam Smith or Karl Marx but are deeply imbued
with the spirit and philosophy of Chief Robert B. Jim of
the Yakimas, Chief Seattle of the Muckleshoots, and
Chief Joseph of the Nez Perce which offer competitive
attitudes towards life, fellow man, and nature. 15
I do not know the extent to which blacks in this
country are imbued with ideas of African Socialism."
Leopold Senghor and S6kou Tour6, the most articulate of
African leaders, have held that modern African political
philosophy is not oriented either to Marxism or to
capitalism." How far the reintroduction into educa-
tional curricula of ancient African art and history has
reached the minds of young Afro-Americans I do not
know. But at least as respects Indians, blacks, and
Chicanos--as well as those from Asian cultures-I think
a separate classification of these applicants is warranted,
lest race be a subtle force in eliminating minority mem-
bers because of cultural differences.
Insofar as LSAT's reflect the dimensions and orienta-
tion of the Organization Man they do a disservice to
minorities. I personally know that admissions tests
were. once used to eliminate Jews. How many other
minorities they aim at I do not know. My reaction is
that the presence of an LSAT is sufficient warrant for
a school to put racial minorities into a separate class in
order better to probe their capacities and potentials.
The merits of the present controversy cannot in
my view be resolved on this record. A trial would
5 SeeC. Fee, Chief Joseph, The Biography of a Great Indian
(1936).
4 See. F. Brockway, Africail Socialism (1963); African Socialism
W. Friedland & C. Rosberg ed. 1964).
17"See L. Senghor,- On African Secialism (M. Cook ed. 1964).
OCTOBER TERM, 1973
involve the disclosure of hidden prejudices, if any, against

certain minorities and the manner in which substitute
measurements of one's talents and character were em-
ployed in the conventional tests. I could agree with
the majority of the Washington Supreme Court only if,
oi the record, it could be said that the Law School's
selection was racially neutral. The case, in my view,
should be remanded foi a new trial to consider, inter alia,
whether thw establishetd LSAT's should he eliminated so
fallas racial minorities are concerned.
This does not mean that a separate LSAT mnust be
designed for minority racial groups, although that might
be a possibility. The reason for the separate treatment
of minorities as a class is to make more certain that racial
factors do not militate against an applicant or on his
8
behalf.1
There is no constitutional right for any race to be
preferred. The years of slavery did more than retard
the progress of blacks. Even a greater wrong was done
the whites by creating arrogance instead of humility and
by encouraging the growth of the fiction of a superior race.
"8 We are not, faced here with a situation where barriers are
overtly or covertly put in the path of members of one racial group
which are not required by others. There was also no showing that
the purpose of the school's policy was to eliminate arbitrary and
irrelevant barriers to entry by certain racial groups into the legal
profession group:;. Griggs v. Duke Power Co., 401 U. S. 424. In
Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1,
16, we stated that as a matter of educational policy school authorities
could, within their broad discretion, ,pecify that each school within
its district have a precribed ratio of Negro to white students
reflecting the proportion for the district as a whole, in order to dis-
establish a dual school system. But there is a crucial difference
between thel policy suggested in Swam and that under consideration
here: the Siwarmn policy would impinge on no person's constitutional
rights, because no one would be excluded from a public school and
no one has a right to attend a segregated public school.
DEFUNIS v. ODEGAARD
312 DOUGLAS, J., dissenting.
There is no superior person by constitutional standards.

A DeFunis who is white is entitled to no advantage by
reason of that fact; nor is he subject to any disability,
no matter what his race or color. Whatever his race, he
had a constitutional right to have his application con-
sidered on. its individual merits in a racially neutral
manner.
The slate is not entirely clean. First, we have held
that pro rata representation of the races is niot required
either on juries, see Cassell v. Texas, 339 U. S. 282, 286-
287, or in public schools, Swan, v. Charlotte-Mecklen-
burg Board of Education, 402 U. S. 1, 24. Moreover,
in Hughes v. Superior Court, 339 U. S. 460, we reviewed
the contempt convictions of pickets who sought by their
demonstration to force an employer to prefer Negroes
to whites in his hiring of clerks, in order to ensure that
50% of the employees were Negro. In finding that
California could constitutionally enjoin the picketing
theie involved we quoted from the opinion of the Cali-
fornia Supreme Court, which noted that the pickets
would "'make the right to work for Lucky dependent
not on fitness for the work nor on an equal right of all,
regardless of race, to compete in an open market, but,
rather, on membership in a particular race. If peti-
tioners were upheld in their demand then other races,
white, yellow, brown and red, would have equal rights
to demand discriminatory hiring on a racial basis.' " Id.,
at 463-464. We then noted that
"I[tlo deny to California the right to ban picketing
in the circumstances of this case would mean that
there could be no prohibition of the pressure of
picketing to secure proportional employment on an-
cestral grounds of Hungarians in Cleveland, of Poles
in Buffalo, of Germans in Milwaukee, of Portuguese
in New Bedford, of Mexicans in San Antonio, of the
OCTOBER TERM, 1973
numerous minority groups in New York, and so on

through the whole gamut of racial and religious
concentrations in various cities." Id., at 464.
The reservation of a proportion of the law school
class for members of selected minority groups is fraught
with similar dangers, for one must immediately deter-
mine which groups are to receive such favored treatment
and which are to be excluded, the proportions of the
class that are to be allocated to each, and even the
criteria by which to determine whether an individual is
a member of a favored group. There is no assurance
that a common agreement can be reached, and first the
schools, and then the courts, will be buffeted with the
competing claims. The University of Washington in-
cluded Filipinos, but excluded Chinese and Japanese;
another school may limit its program to blacks, or to
biacks and Chicanos. Once the Court sanctioned racial
preferences such as these, it could not then wash its hands
of the matter, leaving it entirely in the discretion of the
school, for then we would have effectively overruled
Sweatt v. Painter,339 U. S. 629, and allowed imposition
of a "zero" allocation." But what standard is the Court
to apply when a rejected applicant of Japanese ancestry
brings suit to require the University of Washington to
extend the same privileges to his group? The Committee
might conclude that the population of Washington is now
2% Japanese, and that Japanese also constitute 2% of the
19 Sweatt held that a State could not justify denying a. black ad-
mission to its regular law school by creating a new law school for
blacks. We held that the new law school did not meet the require-
ments of "equality" set forth in Plessy v. Ferguwon, 163 U. S. 537.
The student, we said was entitled to "legal education equivalent to
that offered by the State to students of other races. Such education
is not available to him in a separate law school as 'offered by the
State." 339 U. S., at 635.
DEFUNIS v. ODEGAARD
312 DouGLAs, J., dissenting
Bar, but that had they not been handicapped by a history

of discrimination, Japanese would now constitute 5% of
the Bar, or 20%. Or, alternatively, the Court could
attempt to assess how grievously each group has suffered
from discrimination, and allocate proportions accord-
ingly; if that were the standard, the current University
of Washington policy would almost surely fall, for there
is no Western State which can claim that it has always-
treated Japanese and Chinese in a fair and evenhanded
manner. See, e. g., Yick Wo v. Hopkins,118 U. S. 356;
Terrace v. Thompson, 263 U. S.197; Oyama v. California,
332 U. S. 633. This Court has not sustained a racial
classification since the wartime cases of Korematsu v.
United States, 323 U. S. 214, and.Hirabayashiv. United
States, 320 U. S. 81, involving curfews and relocations
imposed upon Japanese-Americans. °
20 Those cases involved an exercise of the war power, a great
leveler of other rights. Our Navy was sunk at Pearl Harbor and
no one knew where the Japanese fleet was. We were advised on
oral argument that if the Japanese landed troops on our west coast
nothUig could stop them west of the Rockies. The military judg-
ment was that, to aid in the prospective defense of the west coast;
the enclaves of Americans of Japanese ancestry should be moved
inland, lest the invaders by donning civilian clothes would wreak
even more serious havoc on our western ports. The decisions were
extreme and went to the verge of wartime power; and they have
been severely criticized. It is, however, easy in retrospect to
denounce what was done, as there actually was no attempted
Japanese invasion of our country. While our Joint Chiefs of Staff
were worrying about Japanese soldiers landing on the west coast, they
actually were landing in Burma and at Kota Bharu in Malaya. But
those making plans for defense of the Nation had no such knowledge
and were planning for the worst. Moreover, the day we decided
Korematsu we also decided Ex parte Endo, 323 U. S. 283, holding
that while evacuation of the Americans of Japanese ancestry was
allowable under extreme war conditions, their detention after evacua-
tion was not. We said:
"A citizen Who is concededly loyal presents no problem of espio-
OCTOBER TERM, 1973
Nor obviously will the problem be solved if next year

the Law School included only Japanese and Chinese,
for then Norwegians and Swedes, Poles and Italians,
Puerto Ricans and Hungarians, aid all other groups
which form this diverse Nation would have just
complaints.
The key to the problem is consideration of such appli-
cations in a racially neutral way. Abolition of the LSAT
would be a start. The invention of substitute tests
might be made to get a measure of an applicant's cul-
tural background, perception, ability to analyze, and his
or her relation to groups. They are highly subjective,
but unlike the LSAT they are not concealed, but in the
open. A law school is not bound by any legal principle
to admit students by mechanical criteria which are insen-
sitive to thie potential of such an applicant which may be
realized in a more hospitable environment. It will be
necessary under such an approach to put more effort into
assessing each individual than is required when LSAT
scores and undergraduate grades dominate the selection
process. Interviews with the applicant and others who
know him is a time-honored test. Some schools currently
run summer programs in which potential students who
likely would be bypassed under conventional admissions
criteria are given the opportunity to try their hand at law
courses, 21 and certainly their performance in such pro-
grams could. be weighed heavily. There is, moreover, no
bar to considering an individual's prior achievements in
nage or sabotage. Loyalty is a matter of the heart and mind, not

of race, creed, or color. He who is loyal is by definition not a
spy or a saboteur. When the power to detain is derived from the
power to protect the war effort against espionage and sabotage,
detention which has no relationship to that objective is unauthor-
ized." Id., at 302.
21 See n. 3, supra.
DEFUNIS v. ODEGAARD
light of the racial discrimination that barred his way, as

a factor in attempting to assess his true potential for a
successful legal career. Nor is there any bar to consider-
ing on an individual basis, rather than according to racial
classifications, the likelihood that a particular candidate
will more likely -employ his legal skills to service com-
munities that are not now adequately represented than
will competing candidates. Not every student benefited
by such an expanded admissions program would fall into
one of the four racial groups involved here, but it is no
drawback that other deserving applicants will also get an
opportunity they would otherwise have been denied.
Certainly such a program would substantially fulfill the
Law School's interest in giving a more diverse group access
to the legal profession. Such a program might be less
convenient administratively than simply sorting students
by race, but we have never held administrative conven-
ience to justify racial discrimination.
The argument is that a "compelling" state interest
can easily justify the racial discrimination that is prac-
ticed here. To many, "compelling" would give members
of one race even more than pro rata representation. The
public payrolls might then be deluged say with Chicanos
because they are as a group the poorest of the poor and
need work more than others, leaving desperately poor
individual blacks and whites without employment. By
the same token large quotas of blacks or browns could
be added to the Bar, waiving examinations required of
other groups, so that it would be better racially balanced.22
22 In Johnson v. Committee on Examinations, 407 U. S. 915, we
denied certiorari in a case presenting a similar issue. There the
petitioner claimed that the bar examiners reconsidered the papers
submitted by failing minority applicants whose scores were close
to the cutoff point, with the result that some minority appli-
OCTOBER TERM, 1973
The State, however, may not proceed by racial classifi-

cation to force strict population equivalencies for every
group in every occupation, overriding individual pref-
erences. The Equal Protection Clause commands the
elimination of racial barriers, not their creation in order
to satisfy our theory as to how society ought to be orga-
nized. The purpose of the University of Washington
cannot be to produce black lawyers for blacks, Polish
lawyers for Poles, Jewish lawyers for Jews, Irish lawyers
for Irish. It should be to produce good lawyers for
Americans and not to place First Amendment barriers
against anyone. 3 That is the point at the heart of all our
cants were admitted to the Bar although the) initially had examina-
tion scores lower than those of white applicants who failed.
As the Arizona Supreme Court denied Johnson admission sum-
marily, in an original proceeding, there were no judicial findings
either sustaining or rejecting his factual claims of racial bias, putting
the case in an awkward posture for review here. Johnson sub-
sequently brought a civil rights action in Federal District Court,
seeking both damages and injunctive relief. The District Court
dismissed the action and the Court of Appeals affirmed, holding that
the lower federal courts did not have jurisdiction to review the
decisions of the Arizona Supreme Court on admissions to the state
'Bar. Johnson then sought review here and we denied his motion
for leave to file a petition for mandamus, prohibition and/or certi-
orari on February 19, 1974. Johnson v. Wilmer, 415 U. S. 911.
Thus in the entire history of the case no court had ever actually
sustained Johnson's factual contentions concerning racial bias in the
bar examiners' procedures. DeFunis thus appears to be the first
case here squarely presenting the problem.
23 Underlying all cultural background tests are potential ideological
issues that have plagued bar associations and the courts. In re

Summers, 325 U. S.561, involved the denial of the practice of law
to a man who could not. conscientiously bear arms. The vote against
him was five to four. Konigsberg v. State Bar, 353 U. S. 252,
followed, after remand, by Konigsberg v. State Bar, 366 U. S. 36,
resulted in barring one from admission to a state bar because of
his refusal to answer questions concerning Communist Party member-
DEFUNIS v. ODEGAARD
school desegregation cases, from Brown v. Board of Edu-

cation, 347 U. S. 483, through Swann v. Charlotte-Meck-
lenburg Board of Education, 402 U. S. 1. A segregated
admissions process creates suggestions of stigma and caste
no less than a segregated classroom, and in the end it may
produce that result despite its contrary intentions. One
other assumption must be clearly disapproved: that
blacks or browns cannot make it on their individual
merit. That is a stamp of inferiority that a State is not
permitted to place on any lawyer.
If discrimination based on race is constitutionally per-
missible when those who hold the reins can come up with
"compelling" reasons to justify it, then constitutional
guarantees acquire an accordionlike quality. Speech is
closely brigaded with action when it triggers a fight,
Chaplinsky v. New Hampshire, 315 U. S. 568, as shout-
ing "fire" in a crowded theater triggers a riot. It may
well be that racial strains, racial susceptibility to certain
diseases, racial sensitiveness to environmental condi-
tions that other races do not experience, may in an ex-
treme situation justify differences in racial treatment
that no fairminded person would call "invidious" dis-
crimination. Mental ability is not in that category. All
races can compete fairly at all professional levels. So
ship. He, too, was excluded five to four. The petitioner in Schware
v. Board of Bar Examiners, 353 U. S. 232, was, however, admitted to
practice even though he had about 10 years earlier been a member
of the Communist Party. But In re Anastaplo, 366 U. S. 82, a
five-to-four decision, barred a man from admission to a state bar not
because he invoked the Fifth Amendment when asked about mem-
bership in the Communist Party, but because he asserted that the
First. and Fourteenth Amendments protected him from that inquiry.
Baird v. State Bar of Arizona, 401 U. S. 1, held by a divided vote
that a person could not be kept out of the state bar for refusing to
answer whether he had ever been a member of the Communist
Party; and see In re Stolar, 401 U. S. 23.
OCTOBER TERM, 1973
far as race is concerned, any state-sponsored preference to

one race over another in that competition is in my view
"invidious" and violative of the Equal Protection Clause.
The problem tendered by this case is important and
crucial to the operation of our constitutional system;
and educators must be given leeway. It may well be
that a whole congeries of applicants in the marginal group
defy known methods of selection. Conceivably, an ad-
missions committee might conclude that a selection by
lot of, say, the. last 20 seats is the only fair solution.
Courts are not educators; their expertise is limited; and
our task ends with the inquiry whether, judged by the
main purpose of the Equal Protection Clause-the pro-
tection against racial discrimination 4 -there has been
an "invidious" discrimination.
We would have a different case if the suit were one
to displace the applicant who was chosen in lieu of
DeFunis. What the record woula show concerning his
potentials would have to be considered and weighed.
The educational decision, provided proper guidelines
were used, would reflect an expertise that courts should
honor. The problem is not tendered here because the
physical facilities were apparently adequate to take
DeFunis in addition to the others. My view is only that
I cannot say by the tests used and applied he was invidi-
ously discriminated against because of his race.
I cannot conclude that the admissions procedure of the
Law School of the University of Washington that excluded
DeFunis is violative of the Equal Protection Clause
of the Fourteenth Amendment. The judgment of -the
Washington Supreme Court should be vacated and the
case remanded for a new trial.
24 See Slaughter House Cases, 16 Wall. 36, 81.
DEFUNIS v. ODEGAARD
312 Appendix to opinion of DOUGLAS, J., dissenting
APPENDIX TO OPINION OF DOUGLAS, J.,

DISSENTING.
The following are excerpts from the Law School's
current admissions policy, as provided to the Court by
counsel for the respondents.
ADMISSIONS
A. Policy Statement Regarding Admission to Entering
Classes of Juris Doctor Program--Adopted by the Law
Faculty December 4, 1973.
§ 1. The objectives of the admissions program are to
select and admit those applicants who have the best
prospect of high quality academic work at the law school
and, in the minority admissions program described below,
the further objective there stated.
§ 2. In measuring academic potential the law school
relies primarily on the undergraduate grade-point aver-
age and the performance on the Law School Admission
Test (LSAT). The weightinlg of these two indicators
is determined statistically by reference to past experi-
ence at this school. For most applicadts the resulting
applicant ranking is the most nearly accurate of all
available measures of relative academic potential. In
truly exceptional cases, i. e., those in which the numeri-
cal indicators clearly. appear to be an inaccurate measure
of academic potential, the admission decision indicated
by them alone may be altered by a consideration of the
factors listed below. The number of these truly excep-
tional cases in any particular year should fall somewhere
from zero to approximately forty. These factors are
used, however, 'only as an aid in assessing the applicant's
academic potential in its totality, without undue em-
phasis or reliance upon one or a few and without an
attempt to quantify in advance the strength of their
OCTOBER TERM, 1973
Appendix to opinion of DOUGLAS, J., dissenting 416 U. S.-
application, singly or as a whole, in a particular case.

They are:
a) the difficulty or ease of the undergraduate curricu-
lum track pursued;
b) 'the demanding or non-demanding quality of the
undergraduate school or department;
c) the attainment of an advanced degree, the nature
thereof, and difficulty or ease of its attainment;
d) the applicant's pursuits subsequent to attainment
of the undergraduate degree and the degree of success
therein, as bearing on the applicant's academic potential;
e) the possibility that an applicant many years away
from academic work may do less well on the LSAT than
his or her counterpart presently or reantly in academic
work;
f) substantial change in mental or physi6al health
that indicates prospect for-either higher or lower quality
of academic work;
g) substantial change in economic pressures or other
circumstances that indicates prospect for either higher
or lower quality of academic work;
h) exceptionally good or bad performance upon the
writing test ingredient of the LSAT, if the current year's
weighting of the numerical indicators does not otherwise
take the writing score into account;
i) the quality and strength of recommendations bear-
ing upon the applicant's academic potential;
j) objective indicators of motivation to succeed at the
academic study of law;
k) variations in the level of academic achievement
over time; and
1) any other indicators that serve the objective stated
above.
§ 6. Because certain ethnic groups in our society

DEFUNIS v. ODEGAARD
312 Appendix to opinion of DOuGLAs, J., dissenting
have historically been limited in their access to the legal

profession and because the resulting underrepresentation
can affect the quality of legal services available to mem-
bers of such groups, as well as limit their opportunity
for full participation in the governance of our communi-
ties, the faculty recognizes a special obligation in its
admissions policy to contribute to the solution of the
problem.
Qualified minority applicants are therefore admitted
under the minority admissions program in such number
that the entering class will have a reasonable proportion
of minority persons, in view of the obligation stated
above and of the overall objective of the law school to
provide legal education for qualified persons generally.
For the purpose of determining the number to be spe-
cially admitted under the program, and not as a ceiling
on minority admissions generally, the "faculty currently
believes that approximately 15 to 20 percent is such a
reasonable proportion if there are sufficient qualified
applicants, available. Under the minority admissions
program, admission is offered to those applicants who
have a reasonable prospect of academic success at-the
law school, determined in each case by considering the
numerical indicators along with the listed factors in Sec-
tion 2, above, but without regard to the restriction upon
number contained in that section.
No particular internal percentage or proportion among
various minority groups in the entering class is specified;
rather, the law school strives for a reasonable internal
balance given the particular makeup of each year's ap-
plicant population.
As to some or all ethnic groups within the scope of
the minority admissions program, it may be appropriate
to give a preference in some degree to residents of the
state; that determination is made each year in view af
OCTOBER TERM, 1973
BRENNAN, J., dissenting 416 U. S.
all the particulars of that year's situation, and the prefer-

ence is given when necessary to meet some substantial
local need for minority representation.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUG-

LAS, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL
ccncur, dissenting.
I respectfully dissent. Many weeks of the school
term remain, and petitioner may not receive his degree
despite respondents' assurances that petitioner will be
allowed to complete this term's schooling regardless of
our decision. Any number of unexpected events-illness,
economic necessity, even academic failure-might prevent
his graduation at the end of the term. Were that mis-
fortune to befall, and were petitioner required to register
for yet:another term, the prospect that he would again
face the hurdle of the admissions policy is real, not fanci-
ful; for respondents warn that "Mr. DeFunis would have
to take some appropriate action to request continued ad-
-mission for the remainder of his law school education,
and some discretionary action by the University on such
reques' would have to be taken." Respondents' Memo-
randum on the Question of Mootness 3-4 (emphasis
supplied). Thus, respondents' assurances have not dis-
sipated the possibility that petitioner might once again
have to run the gantlet of the University's allegedly
unlawful admissions policy. The Court therefore pro-
ceeds on an erroneous premise in resting its mootness
holding on a supposed inability to render any judgment
that may affect one way or the other petitioner's comple-
tion of his law studies. For surely if we were to reverse
the Washington Supreme Court, we could insure that, if
for some reason petitioner did not graduate this spring,
he would be entitled to re-enrollment at a later time on
the same basis as others who have not faced the hurdle
of the University's allegedly unlawful admissions policy.
DnFUNIS v. ODEGAARD
312 BRENNAN, J., dissenting
In these circumstances, and because the University's

position implies no concession that its admissions policy
is unlawful, this controversy falis squarely within the
Court's long line of decisions holding that the "[m]ere
voluntary cessation of allegedly illegal conduct does not
moot a case." United States v. PhosphateExport Assn.,
393 U. S. 199, 203 (196.8); Qee Gray v. Sanders, 372 U. S.
368 (1963); United States v. W. T. Grant Co., 345 U. S.
629 (1953); Walling v. Helmerich & Payne, Inc., 323
U. S. 37 (1944); FTC v. Goodyear Tire & Rubber Co.,
304 U. S. 257 (1938); United States v. Trans-Missouri
Freight Assn., 166 U. S. 290 (1897). Since respondents'
voluntary representation to this Court is. only that they
will permit petitioner to complete this term's studies,
respondents have not borne the "heavy burden," United
States v. Phosphate Export Assn., supra, at 203, of dem-
onstrating that there was not even a "mere possibility"
that petitioner would once again be subject to the chal-
lenged admissions policy. United States v. W. T. Grant
Co., supra, at 633. On the contrary, respondents have
positioned themselves so as to be "free to return to
[their] old ways." Id., at 632.
I can thus find no justification for the Court's straining
to rid itself of this dispute. While we must be vigilant
to require that litigants maintain a personal stake in the
outcome of a controversy to assure that "the questions
will be framed with the necessary specificity, that the
issues will be contested with the necessary adverseness
and that the litigation will be pursued with the necessary
vigor to assure that the constitutional challenge will-be
made in a form traditionally thought to be capable of
judicial resolution," Flast v. Cohen, 392 U. S. 83, 10&,
(1968), there is no want of an adversary contest in this
case. Indeed, the Court concedes that, if petitioner, has
lost his stake in this controversy, he did so only when he
536-272 0 - 75 - 27
OCTOBER TERM, 1973
BRENNAN, J., dissenting 416 U. S.
registered for the spring term. But petitioner took that

actiofi only after the case had been fully litigated in the
state courts, briefs had been filed in this Court, and oral
argument had been heard. The'case is thus* ripe for
decision on a fully developed factual record with sharply
defined and fully canvassed legal issues. Cf. Sibron v.
New York, 392 U. S. 40, 57 (1968).
Moreover, in endeavoring to dispose of this case as
moot, the Court clearly disserves the public interest.
The constitutional issues which are avoided today con-
cern vast numbers of people, organizations, and colleges
and universities, 'as evidenced by the filing of twenty-six
amicus curiae briefs. Few constitutional questions in
recent history have stirred as much debate, and they will
not disappear. They must inevitably return to the
federal courts and ultimately again to this Court. Cf.
Richardson v. Wright,'405 U. S. 208, 212 (1972) (dis-
senting opinion). Because avoidance of repetitious
litigation serves the public interest, that inevitability
counsels against mootness determinations, as here, not
compelled by the record. Cf. UnitedStates v. W. T. Grant
Co., supra, at 632; Parker v. Ellis, 362 U. S. 574, 594
(1960) (dissenting opinion). Although the Court
,should, of course, avoid unnecessary decisions of consti-
tutional questions, we should not transform principles of
avoidance of constitutional decisions into devices for side-
stepping resolution of difficult cases. Cf. Cohens v.
Virginia, 6 Wheat. 264, 404-405 (1821) (Marshall, C. J.).
On what appears in this case, I would find that there
is an extant controversy and decide the merits of the'very
important constitutional questions presented.
1
G.R. No. 141284 August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO
REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order
seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the "Marines") to join the Philippine National Police (the "PNP") in visibility
patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the
President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose of
crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines (the "AFP"), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked to
execute and implement the said order. In compliance with the presidential mandate, the PNP Chief, through Police
Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/20001 (the "LOI") which detailed the
manner by which the joint visibility patrols, called Task Force Tulungan, would be conducted.2 Task
Force Tulungan was placed under the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum,
dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief.3 In the Memorandum, the
President expressed his desire to improve the peace and order situation in Metro Manila through a more effective
crime prevention program including increased police patrols.4 The President further stated that to heighten police
visibility in the metropolis, augmentation from the AFP is necessary.5 Invoking his powers as Commander-in-Chief
under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to
coordinate with each other for the proper deployment and utilization of the Marines to assist the PNP in preventing
or suppressing criminal or lawless violence.6 Finally, the President declared that the services of the Marines in the
anti-crime campaign are merely temporary in nature and for a reasonable period only, until such time when the
situation shall have improved.7
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in
the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to
national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized
syndicates whose members include active and former police/military personnel whose training, skill, discipline and
firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes
specially those perpetrated by active or former police/military personnel.
4. MISSION:
2
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro
Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose members include those that are well-
trained, disciplined and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office]
and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the
state against insurgents and other serious threat to national security, although the primary responsibility over
Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes
perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military and
police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing
crime prevention. Along this line, the role of the military and police aside from neutralizing crime syndicates
is to bring a wholesome atmosphere wherein delivery of basic services to the people and development is
achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are
responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force "TULUNGAN" shall be
organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating,
monitoring and assessing the security situation.
xxx.8
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping
Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic
Airport.9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant petition to annul LOI 02/2000
and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing that:
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE

CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY

REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN

FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5
(4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO

PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY

MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.10
3
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law
and the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist the
PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,11 dated 25 January 2000, required the
Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his
Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines,
contending, among others, that petitioner has no legal standing; that the question of deployment of the Marines is
not proper for judicial scrutiny since the same involves a political question; that the organization and conduct of
police visibility patrols, which feature the team-up of one police officer and one Philippine Marine soldier, does not
violate the civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not the
President’s factual determination of the necessity of calling the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in
the petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if
the following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a
personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is
pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.12
The IBP has not sufficiently complied with the requisites of standing in this case.
"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.13 The
term "interest" means a material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest.14 The gist of the question of standing is whether a
party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional
questions."15
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and
the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi.
The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is
not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups
and the whole citizenry. Based on the standards above-stated, the IBP has failed to present a specific and
substantial interest in the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the
4
Rules of Court, is to elevate the standards of the law profession and to improve the administration of justice is alien
to, and cannot be affected by the deployment of the Marines. It should also be noted that the interest of the National
President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing him to file the
present action. To be sure, members of the BAR, those in the judiciary included, have varying opinions on the issue.
Moreover, the IBP, assuming that it has duly authorized the National President to file the petition, has not shown any
specific injury which it has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its
members, whom the IBP purportedly represents, has sustained any form of injury as a result of the operation of the
joint visibility patrols. Neither is it alleged that any of its members has been arrested or that their civil liberties have
been violated by the deployment of the Marines. What the IBP projects as injurious is the supposed "militarization"
of law enforcement which might threaten Philippine democratic institutions and may cause more harm than good in
the long run. Not only is the presumed "injury" not personal in character, it is likewise too vague, highly speculative
and uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a direct and
personal injury as a consequence of the questioned act, it does not possess the personality to assail the validity of
the deployment of the Marines. This Court, however, does not categorically rule that the IBP has absolutely no
standing to raise constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy
this Court that it has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit
which does not satisfy the requirement of legal standing when paramount interest is involved.16 In not a few cases,
the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an
issue of transcendental significance to the people.17 Thus, when the issues raised are of paramount importance to
the public, the Court may brush aside technicalities of procedure.18 In this case, a reading of the petition shows that
the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawless
violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the President of the necessity of
calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits
that the deployment of the military personnel falls under the Commander-in-Chief powers of the President as stated
in Section 18, Article VII of the Constitution, specifically, the power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of the
Marines under the aforestated provision. According to the IBP, no emergency exists that would justify the need for
the calling of the military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to
warrant the calling of the Marines. Thus, the IBP prays that this Court "review the sufficiency of the factual basis for
said troop [Marine] deployment."19
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the armed
forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues which
are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the extent of
judicial review. But, while this Court gives considerable weight to the parties’ formulation of the issues, the resolution
of the controversy may warrant a creative approach that goes beyond the narrow confines of the issues raised.
Thus, while the parties are in agreement that the power exercised by the President is the power to call out the
armed forces, the Court is of the view that the power involved may be no more than the maintenance of peace and
order and promotion of the general welfare.20 For one, the realities on the ground do not show that there exist a
state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the
citizenry, a point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes in Marcos
v. Manglapus:
More particularly, this case calls for the exercise of the President’s powers as protector of the peace. [Rossiter, The
American Presidency]. The power of the President to keep the peace is not limited merely to exercising the
5
commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with
attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times
when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties
in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-
chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be
said to exclude the President’s exercising as Commander-in-Chief powers short of the calling of the armed forces,
or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.
xxx21
Nonetheless, even if it is conceded that the power involved is the President’s power to call out the armed forces to
prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a similar
result.
We now address the Solicitor General’s argument that the issue involved is not susceptible to review by the judiciary
because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court review.22 It
pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Nevertheless,
the Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in
instances that are ripe for resolution. One class of cases wherein the Court hesitates to rule on are "political
questions." The reason is that political questions are concerned with issues dependent upon the wisdom, not the
legality, of a particular act or measure being assailed. Moreover, the political question being a function of the
separation of powers, the courts will not normally interfere with the workings of another co-equal branch unless the
case shows a clear need for the courts to step in to uphold the law and the Constitution.
As Tañada v. Cuenco23 puts it, political questions refer "to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government." Thus, if an issue is clearly identified by the text of
the Constitution as matters for discretionary action by a particular branch of government or to the people themselves
then it is held to be a political question. In the classic formulation of Justice Brennan in Baker v. Carr,24 "[p]rominent
on the surface of any case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarassment from multifarious pronouncements by various
departments on the one question."
The 1987 Constitution expands the concept of judicial review by providing that "(T)he Judicial power shall be vested
in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of
the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government."25 Under this definition, the Court cannot
agree with the Solicitor General that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed
qualifications or conditions have been met or the limitations respected, is justiciable - the problem being one of
legality or validity, not its wisdom.26 Moreover, the jurisdiction to delimit constitutional boundaries has been given to
this Court.27 When political questions are involved, the Constitution limits the determination as to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official
whose action is being questioned.28
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross
as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
6
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or
hostility.29 Under this definition, a court is without power to directly decide matters over which full discretionary
authority has been delegated. But while this Court has no power to substitute its judgment for that of Congress or of
the President, it may look into the question of whether such exercise has been made in grave abuse of
discretion.30A showing that plenary power is granted either department of government, may not be an obstacle to
judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable controversy.31
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers
and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s
wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity
of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally
bereft of factual basis. The present petition fails to discharge such heavy burden as there is no evidence to support
the assertion that there exist no justification for calling out the armed forces. There is, likewise, no evidence to
support the proposition that grave abuse was committed because the power to call was exercised in such a manner
as to violate the constitutional provision on civilian supremacy over the military. In the performance of this Court’s
duty of "purposeful hesitation"32 before declaring an act of another branch as unconstitutional, only where such
grave abuse of discretion is clearly shown shall the Court interfere with the President’s judgment. To doubt is to
sustain.
There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call
out the armed forces and to determine the necessity for the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for the exercise of the calling out power
is also implied and further reinforced in the rest of Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
7
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review
the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the
revocation or review of the President’s action to call out the armed forces. The distinction places the calling out
power in a different category from the power to declare martial law and the power to suspend the privilege of the writ
of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers
and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. Where
the terms are expressly limited to certain matters, it may not, by interpretation or construction, be extended to other
matters.33 That the intent of the Constitution is exactly what its letter says, i.e., that the power to call is fully
discretionary to the President, is extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as
Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence;
then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated
sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his
judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence
by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it
is necessary, it is my opinion that his judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first
sentence: "The President may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion." So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by
the First Sentence: "The President....may call out such Armed Forces to prevent or suppress lawless violence,
invasion or rebellion." So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, instead
of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces
of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.34
The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the
President the widest leeway and broadest discretion in using the power to call out because it is considered as the
lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and
individual freedoms, and thus necessitating safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of
the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion
or rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call
out the armed forces. The only criterion is that "whenever it becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given
full discretion and wide latitude in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then
this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out
8
the armed forces is not easily quantifiable and cannot be objectively established since matters considered for
satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge necessity, information necessary to arrive at such
judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or
wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there
is a need to call out the armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information,
some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the
power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not
farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the
other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered
judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an
injunction or a temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed
Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the President’s exercise of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed forces. In his
Memorandum, he categorically asserted that, "[V]iolent crimes like bank/store robberies, holdups, kidnappings and
carnappings continue to occur in Metro Manila..."35 We do not doubt the veracity of the President’s assessment of
the situation, especially in the light of present developments. The Court takes judicial notice of the recent bombings
perpetrated by lawless elements in the shopping malls, public utilities, and other public places. These are among the
areas of deployment described in the LOI 2000. Considering all these facts, we hold that the President has sufficient
factual basis to call for military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian
character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP asserts
that by the deployment of the Marines, the civilian task of law enforcement is "militarized" in violation of Section 3,
Article II36 of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The
calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The
participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited
participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and
bounds of the Marines’ authority. It is noteworthy that the local police forces are the ones in charge of the visibility
patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols.37 Under the LOI, the police forces are tasked to brief or
orient the soldiers on police patrol procedures.38 It is their responsibility to direct and manage the deployment of the
Marines.39 It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support
to these soldiers.40 In view of the foregoing, it cannot be properly argued that military authority is supreme over
civilian authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character
of the police force. Neither does it amount to an "insidious incursion" of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.41
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged
involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited
provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian institution,
the PNP, and not with the military. Such being the case, it does not matter whether the AFP Chief actually
participates in the Task Force Tulungan since he does not exercise any authority or control over the same. Since
9
none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to civilian
position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian
character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance required in conducting the
patrols. As such, there can be no "insidious incursion" of the military in civilian affairs nor can there be a violation of
the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction.
The Philippine experience reveals that it is not averse to requesting the assistance of the military in the
implementation and execution of certain traditionally "civil" functions. As correctly pointed out by the Solicitor
General, some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that
bring both the civilian and the military together in a relationship of cooperation, are:
1. Elections;42
2. Administration of the Philippine National Red Cross;43
3. Relief and rescue operations during calamities and disasters;44
4. Amateur sports promotion and development;45
5. Development of the culture and the arts;46
6. Conservation of natural resources;47
7. Implementation of the agrarian reform program;48
8. Enforcement of customs laws;49
9. Composite civilian-military law enforcement activities;50
10. Conduct of licensure examinations;51
11. Conduct of nationwide tests for elementary and high school students;52
12. Anti-drug enforcement activities;53
13. Sanitary inspections;54
14. Conduct of census work;55
15. Administration of the Civil Aeronautics Board;56
16. Assistance in installation of weather forecasting devices;57
17. Peace and order policy formulation in local government units.58
This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive
practice, long pursued to the knowledge of Congress and, yet, never before questioned.59 What we have here is
mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military force for domestic
purposes has persisted,60 and whose Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines. Under the Posse Comitatus Act61 of the US, the use
of the military in civilian law enforcement is generally prohibited, except in certain allowable circumstances. A
provision of the Act states:
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be
fined not more than $10,000 or imprisoned not more than two years, or both.62
To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the US
courts63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner
that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive,
or compulsory64 George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards
for assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED IN
10
THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law
Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean that military involvement, even
when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those claiming relief.1âwphi1 A mere threat of
some future injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to determine whether there is
permissible use of the military in civilian law enforcement, the conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:
3. The designation of tasks in Annex A65 does not constitute the exercise of regulatory, proscriptive, or compulsory
military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6,66 8(k)67 and
9(a)68of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d)69 of Annex A, all
arrested persons are brought to the nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No. 8(c)70 of Annex A, are all low impact
and defensive in character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory
military power, the deployment of a handful of Philippine Marines constitutes no impermissible use of military power
for civilian law enforcement.71
It appears that the present petition is anchored on fear that once the armed forces are deployed, the military will
gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are unfounded. The
power to call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it
has not, that in the deployment of the Marines, the President has violated the fundamental law, exceeded his
authority or jeopardized the civil liberties of the people, this Court is not inclined to overrule the President’s
determination of the factual basis for the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has complained
that his political or civil rights have been violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
1
[ GR No. 127685, Jul 23, 1998 ]

BLAS F. OPLE v. RUBEN D. TORRES +
DECISION
354 Phil. 948
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right
to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of rights and the right
most valued by civilized men."[1] Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" on two important constitutional grounds, viz:
one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's
protected zone of privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger
barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and reads as follows:
"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact
business with basic service and social security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic
services on social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services and social security providing
agencies and other government instrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers
vested in me by law, do hereby direct the following:
SECTION 1. Establishment of a National Computerized Identification Reference System. A decentralized

Identification Reference System among the key basic services and social security providers is hereby established.
SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head, Presidential Management Staff

Secretary, National Economic Development Authority
Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator, National Statistics Office Managing Director, National
Computer Center.
SEC. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as
such shall provide administrative and technical support to the IACC.
SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as
the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall
coordinate with the different Social Security and Services Agencies to establish the standards in the use of
Biometrics Technology and in computer application designs of their respective systems.
2
SEC. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the
National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise public awareness on the importance
and use of the PRN and the Social Security Identification Reference.
SEC. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective
budgets of the concerned agencies.
SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the
President, through the IACC, on the status of implementation of this undertaking.
SEC. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS"
A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997.
On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben
Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee,
are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order
enjoining its implementation.
Petitioner contends:
"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE
POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O.
NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM
WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION."[2]
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE
PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE

SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY.[3]
We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the
petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no legal
3
interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our Senate.
As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of
A.O. No. 308 is a usurpation of legislative power.[4]As taxpayer and member of the Government Service Insurance
System (GSIS), petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS
funds to implement A.O. No. 308.[5]
The ripeness for adjudication of the petition at bar is not affected by the fact that the implementing rules of A.O. No.
308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face.
His action is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the
respondents themselves have started the implementation of A.O. No. 308 without waiting for the rules. As early as
January 19, 1997, respondent Social Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card.[6] Respondent Executive Secretary Torres has publicly
announced that representatives from the GSIS and the SSS have completed the guidelines for the national
identification system.[7] All signals from the respondents show their unswerving will to implement A.O. No. 308 and
we need not wait for the formality of the rules to pass judgment on its constitutionality. In this light, the dissenters
insistence that we tighten the rule on standing is not a commendable stance as its result would be to throttle an
important constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law
and hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is
understandable. The blurring of the demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed. Hence,
the exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this
Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under
the Constitution, to make laws, and to alter and repeal them."[8] The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines.[9] The grant of
legislative power to Congress is broad, general and comprehensive.[10] The legislative body possesses plenary
power for all purposes of civil government.[11] Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it elsewhere.[12] In fine, except as limited by
the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of
general concern or common interest.[13]
While Congress is vested with the power to enact laws, the President executes the laws.[14] The executive power is
vested in the President.[15] It is generally defined as the power to enforce and administer the laws.[16] It is the power
of carrying the laws into practical operation and enforcing their due observance.[17]
As head of the Executive Department, the President is the Chief Executive. He represents the government as a
whole and sees to it that all laws are enforced by the officials and employees of his department.[18] He has control
over the executive department, bureaus and offices. This means that he has the authority to assume directly the
functions of the executive department, bureau and office, or interfere with the discretion of its officials.[19] Corollary to
the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control
to enable him to discharge his duties effectively.[20]
Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper
governmental organs.[21] It enables the President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents.[22] To this end, he can issue administrative orders, rules and regulations.
4
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered
by an administrative order. An administrative order is:
"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular aspects of governmental operation
in pursuance of his duties as administrative head shall be promulgated in administrative orders."[23]
An administrative order is an ordinance issued by the President which relates to specific aspects in the
administrative operation of government. It must be in harmony with the law and should be for the sole purpose of
implementing the law and carrying out the legislative policy.[24] We reject the argument that A.O. No. 308
implements the legislative policy of the Administrative Code of 1987. The Code is a general law and "incorporates in
a unified document the major structural, functional and procedural principles of governance"[25] and "embodies
changes in administrative structures and procedures designed to serve the people."[26] The Code is divided into
seven (7) Books: Book I deals with Sovereignty and General Administration, Book II with the Distribution of Powers
of the three branches of Government, Book III on the Office of the President, Book IV on the Executive Branch,
Book V on the Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on
Administrative Procedure. These Books contain provisions on the organization, powers and general administration
of the executive, legislative and judicial branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional
Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for
the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the
internal administration of government, i.e, internal organization, personnel and recruitment, supervision and
discipline, and the effects of the functions performed by administrative officials on private individuals or parties
outside government.[27]
It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It
establishes for the first time a National Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies-- the primacy of national security, the extent of privacy
interest against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of thought. As said administrative order
redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the line that separates
the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident
that it deals with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because it confers no right, imposes no
duty, affords no protection, and creates no office. Under A.O. No. 308, a citizen cannot transact business with
government agencies delivering basic services to the people without the contemplated identification card. No citizen
will refuse to get this identification card for no one can avoid dealing with government. It is thus clear as daylight that
without the ID, a citizen will have difficulty exercising his rights and enjoying his privileges. Given this reality, the
contention that A.O. No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and
consequently erodes the plenary power of Congress to make laws. This is contrary to the established approach
defining the traditional limits of administrative legislation. As well stated by Fisher: "x x x Many regulations however,
bear directly on the public. It is here that administrative legislation must be restricted in its scope and application.
Regulations are not supposed to be a substitute for the general policy-making that Congress enacts in the form of a
public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws."[28]
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as
an administrative legislation because facially it violates the right to privacy. The essence of privacy is the "right to be
let alone."[29] In the 1965 case of Griswold v. Connecticut,[30] the United States Supreme Court gave more substance
to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy
which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments,[31] viz:
5
"Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that help
give them life and substance x x x. Various guarantees create zones of privacy. The right of association contained in
the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the
quartering of soldiers `in any house' in time of peace without the consent of the owner is another facet of that
privacy. The Fourth Amendment explicitly affirms the `right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: `The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.'"
In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that there is a constitutional right to privacy.
Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held:
"xxx
The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the
ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed
"a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It has
wider implications though. The constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this
private sector-- protection, in other words, of the dignity and integrity of the individual--has become increasingly
important as modern society has developed. All the forces of a technological age --industrialization, urbanization,
and organization-- operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian
society.'"
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several
provisions of our Constitution.[33] It is expressly recognized in Section 3(1) of the Bill of Rights:
"Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed by law."
Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:[34]
"Sec. 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.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
x x x.
Sec. 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.
x x x.
6
Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very person
shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes
as actionable torts several acts by a person of meddling and prying into the privacy of another.[35] It also holds a
public officer or employee or any private individual liable for damages for any violation of the rights and liberties of
another person,[36] and recognizes the privacy of letters and other private communications.[37] The Revised Penal
Code makes a crime the violation of secrets by an officer,[38] the revelation of trade and industrial secrets,[39] and
trespass to dwelling.[40] Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law,[41] the
Secrecy of Bank Deposit Act[42] and the Intellectual Property Code.[43] The Rules of Court on privileged
communication likewise recognize the privacy of certain information.[44]
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by
the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to provide
our citizens and foreigners with the facility to conveniently transact business with basic service and social security
providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent
transactions and misrepresentations by persons seeking basic services. It is debatable whether these interests are
compelling enough to warrant the issuance of A.O. No. 308. But what is not arguable is the broadness, the
vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in clear and
present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a
"common reference number to establish a linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."
Biometry or biometrics is "the science of the application of statistical methods to biological facts; a mathematical
analysis of biological data."[45] The term "biometrics" has now evolved into a broad category of technologies which
provide precise confirmation of an individual's identity through the use of the individual's own physiological and
behavioral characteristics.[46] A physiological characteristic is a relatively stable physical characteristic such as a
fingerprint, retinal scan, hand geometry or facial features. A behavioral characteristic is influenced by the individual's
personality and includes voice print, signature and keystroke.[47] Most biometric identification systems use a card or
personal identification number (PIN) for initial identification. The biometric measurement is used to verify that the
individual holding the card or entering the PIN is the legitimate owner of the card or PIN.[48]
A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns the
unique pattern therein into an individual number which is called a biocrypt. The biocrypt is stored in computer data
banks[49] and becomes a means of identifying an individual using a service. This technology requires one's fingertip
to be scanned every time service or access is provided.[50] Another method is the retinal scan. Retinal scan
technology employs optical technology to map the capillary pattern of the retina of the eye. This technology
produces a unique print similar to a finger print.[51] Another biometric method is known as the "artificial nose." This
device chemically analyzes the unique combination of substances excreted from the skin of people.[52] The latest on
the list of biometric achievements is the thermogram. Scientists have found that by taking pictures of a face using
infra-red cameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and blood
vessels all contribute to the individual's personal "heat signature."[53]
In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science facts.
Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses
various technologies in encoding any and all biological characteristics of an individual for identification. It is
noteworthy that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics
technology shall be used to identify people who will seek its coverage. Considering the banquet of options available
to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of
7
data is limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the "generation of population data for development
planning."[54] This is an admission that the PRN will not be used solely for identification but for the generation of
other data with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308
can give the government the roving authority to store and retrieve information for a purpose other than the
identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed as the dissenters do.
Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government
agency to avail of basic services and security. His transactions with the government agency will necessarily be
recorded-- whether it be in the computer or in the documentary file of the agency. The individual's file may include
his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for
medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge and
formidable information base through the electronic linkage of the files.[55] The data may be gathered for gainful and
useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert
invitation to misuse, a temptation that may be too great for some of our authorities to resist.[56]
We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic
personal information about the individual.[57] Even that hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell us in clear and categorical terms how these information
gathered shall be handled. It does not provide who shall control and access the data, under what circumstances and
for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the
information.[58] Well to note, the computer linkage gives other government agencies access to the information. Yet,
there are no controls to guard against leakage of information. When the access code of the control programs of the
particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for
whatever purpose, or worse, manipulate the data stored within the system.[59]
It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered
about our people will only be processed for unequivocally specified purposes.[60] The lack of proper safeguards in
this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to
track down his movement; it may also enable unscrupulous persons to access confidential information and
circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government
authorities and evade the right against unreasonable searches and seizures.[61] The possibilities of abuse and
misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much less verify the correctness of the data encoded.[62] They
threaten the very abuses that the Bill of Rights seeks to prevent.[63]
The ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and
transmit it over a national network is one of the most graphic threats of the computer revolution.[64] The computer is
capable of producing a comprehensive dossier on individuals out of information given at different times and for
varied purposes.[65] It can continue adding to the stored data and keeping the information up to date. Retrieval of
stored data is simple. When information of a privileged character finds its way into the computer, it can be extracted
together with other data on the subject.[66] Once extracted, the information is putty in the hands of any person. The
end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the
right to privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court
will not be true to its role as the ultimate guardian of the people's liberty if it would not immediately smother the
sparks that endanger their rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with
regard to the National ID and the use of biometrics technology as it stands on quicksand. The reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited
an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable.[67] The
factual circumstances of the case determines the reasonableness of the expectation.[68]However, other factors, such
as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this
expectation.[69] The use of biometrics and computer technology in A.O. No. 308 does not assure the individual of a
8
reasonable expectation of privacy.[70] As technology advances, the level of reasonably expected privacy
decreases.[71] The measure of protection granted by the reasonable expectation diminishes as relevant technology
becomes more widely accepted.[72] The security of the computer data file depends not only on the physical
inaccessibility of the file but also on the advances in hardware and software computer technology. A.O. No. 308 is
so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology used,
cannot be inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy this fatal defect. Rules and regulations merely
implement the policy of the law or order. On its face, A.O. No. 308 gives the IACC virtually unfettered discretion to
determine the metes and bounds of the ID System.
Nor do our present laws provide adequate safeguards for a reasonable expectation of privacy. Commonwealth Act
No. 591 penalizes the disclosure by any person of data furnished by the individual to the NSO with imprisonment
and fine.[73] Republic Act No. 1161 prohibits public disclosure of SSS employment records and reports.[74] These
laws, however, apply to records and data with the NSO and the SSS. It is not clear whether they may be applied to
data with the other government agencies forming part of the National ID System. The need to clarify the penal
aspect of A.O. No. 308 is another reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using the
rational relationship test.[75]He stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed up the
implementation of basic government services, (2) eradicate fraud by avoiding duplication of services, and (3)
generate population data for development planning. He concludes that these purposes justify the incursions into the
right to privacy for the means are rationally related to the end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld the constitutionality of R.A. 3019, the Anti-
Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a public
officer to make an annual report disclosing his assets and liabilities, his sources of income and expenses, did not
infringe on the individual's right to privacy. The law was enacted to promote morality in public administration by
curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public
service.[78]
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative
order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. In the case at bar, A.O. No. 308 may have been impelled by
a worthy purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hold that when
the integrity of a fundamental right is at stake, this court will give the challenged law, administrative order, rule or
regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the
performance of official duties. Nor is it enough for the authorities to prove that their act is not irrational for a basic
right can be diminished, if not defeated, even when the government does not act irrationally. They must satisfactorily
show the presence of compelling state interests and that the law, rule, or regulation is narrowly drawn to preclude
abuses. This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human
rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the stance that will
not put in danger the rights protected by the Constitution.
The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line. In Whalen, the United States Supreme
Court was presented with the question of whether the State of New York could keep a centralized computer record
of the names and addresses of all persons who obtained certain drugs pursuant to a doctor's prescription. The New
York State Controlled Substances Act of 1972 required physicians to identify patients obtaining prescription drugs
enumerated in the statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the
names and addresses of the patients can be recorded in a centralized computer file of the State Department of
Health. The plaintiffs, who were patients and doctors, claimed that some people might decline necessary medication
because of their fear that the computerized data may be readily available and open to public disclosure; and that
once disclosed, it may stigmatize them as drug addicts.[80] The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e, the individual interest in avoiding disclosure of personal matters, and
the interest in independence in making certain kinds of important decisions. The U.S. Supreme Court held that while
an individual's interest in avoiding disclosure of personal matters is an aspect of the right to privacy, the statute did
not pose a grievous threat to establish a constitutional violation. The Court found that the statute was necessary to
9
aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. The patient-identification
requirement was a product of an orderly and rational legislative decision made upon recommendation by a specially
appointed commission which held extensive hearings on the matter. Moreover, the statute was narrowly drawn and
contained numerous safeguards against indiscriminate disclosure. The statute laid down the procedure and
requirements for the gathering, storage and retrieval of the information. It enumerated who were authorized to
access the data. It also prohibited public disclosure of the data by imposing penalties for its violation. In view of
these safeguards, the infringement of the patients' right to privacy was justified by a valid exercise of police power.
As we discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se against the use of
computers to accumulate, store, process, retrieve and transmit data to improve our bureaucracy. Computers work
wonders to achieve the efficiency which both government and private industry seek. Many information systems in
different countries make use of the computer to facilitate important social objectives, such as better law
enforcement, faster delivery of public services, more efficient management of credit and insurance programs,
improvement of telecommunications and streamlining of financial activities.[81] Used wisely, data stored in the
computer could help good administration by making accurate and comprehensive information for those who have to
frame policy and make key decisions.[82] The benefits of the computer has revolutionized information technology. It
developed the internet,[83] introduced the concept of cyberspace[84] and the information superhighway where the
individual, armed only with his personal computer, may surf and search all kinds and classes of information from
libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy.
The right is not intended to stifle scientific and technological advancements that enhance public service and the
common good. It merely requires that the law be narrowly focused[85] and a compelling interest justify such
intrusions.[86] Intrusions into the right must be accompanied by proper safeguards and well-defined standards to
prevent unconstitutional invasions. We reiterate that any law or order that invades individual privacy will be
subjected by this Court to strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit:
"The concept of limited government has always included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and
limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the
absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector--
protection, in other words, of the dignity and integrity of the individual-- has become increasingly important as
modern society has developed. All the forces of a technological age-- industrialization, urbanization, and
organization-- operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference between a democratic and a totalitarian
society."[87]
IV
The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from
various sources-- governments, journalists, employers, social scientists, etc.[88] In the case at bar, the threat comes
from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their
privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given
the record-keeping power of the computer, only the indifferent will fail to perceive the danger that A.O. No. 308 gives
the government the power to compile a devastating dossier against unsuspecting citizens. It is timely to take note of
the well-worded warning of Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an
unerasable record of his past and his limitations. In a way, the threat is that because of its record-keeping, the
society will have lost its benign capacity to forget."[89] Oblivious to this counsel, the dissents still say we should not
be too quick in labelling the right to privacy as a fundamental right. We close with the statement that the right to
privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" declared null and void for being unconstitutional.
SO ORDERED.
1
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S.
INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong Alyansang Makabayan,
HON. NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A
Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno,
JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN
A. GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his capacity as
Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary,
pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President, .
HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON JESUS P. P AJE,
Secretary, Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO,
Philippine Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO
RENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine
Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the
Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan
2013 Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of
Procedure for Environmental Cases (Rules), involving violations of environmental laws and regulations in relation to
the grounding of the US military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language which means
"long reef exposed at low tide." Tubbataha is composed of two huge coral atolls - the north atoll and the south atoll -
and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of the atolls. The reefs of
Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by President
Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers southeast of
Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized as one of the Philippines' oldest ecosystems, containing
excellent examples of pristine reefs and a high diversity of marine life. The 97,030-hectare protected marine park is
also an important habitat for internationally threatened and endangered marine species. UNESCO cited
Tubbataha's outstanding universal value as an important and significant natural habitat for in situ conservation of
biological diversity; an example representing significant on-going ecological and biological processes; and an area
of exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the "Tubbataha Reefs
Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation of the globally significant economic,
biological, sociocultural, educational and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment
of present and future generations." Under the "no-take" policy, entry into the waters of TRNP is strictly regulated and
2
many human activities are prohibited and penalized or fined, including fishing, gathering, destroying and disturbing
the resources within the TRNP. The law likewise created the Tubbataha Protected Area Management Board
(TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the US
Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter and exit the territorial waters
of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship replenishment, maintenance,
and crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after
a brief stop for fuel in Okinawa, Japan.1âwphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia. On
January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No cine was injured in the incident, and
there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the incident in a
press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the Department
of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the grounding incident and assured Foreign
Affairs Secretazy Albert F. del Rosario that the United States will provide appropriate compensation for damage to
the reef caused by the ship."6 By March 30, 2013, the US Navy-led salvage team had finished removing the last
piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective
sector/organization and others, including minors or generations yet unborn, filed the present petition agairtst Scott
H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of
the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises
Co-Director ("US respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa,
Jr., Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje (Department of
Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command,
AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause and
continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan,
Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which
events violate their constitutional rights to a balanced and healthful ecology. They also seek a directive from this
Court for the institution of civil, administrative and criminal suits for acts committed in violation of environmental laws
and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of conservation fees (Section 21 ); obstruction of law enforcement
officer (Section 30); damages to the reef (Section 20); and destroying and disturbing resources (Section 26[g]).
Furthermore, petitioners assail certain provisions of the Visiting Forces Agreement (VFA) which they want this Court
to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit: WHEREFORE, in view
of the foregoing, Petitioners respectfully pray that the Honorable Court: 1. Immediately issue upon the filing of this
petition a Temporary Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all operations over the
Guardian grounding incident;
3
b. Initially demarcating the metes and bounds of the damaged area as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the absence of clear
guidelines, duties, and liability schemes for breaches of those duties, and require Respondents to assume
responsibility for prior and future environmental damage in general, and environmental damage under the
Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and limited
commercial activities by fisherfolk and indigenous communities near or around the TRNP but away from the
damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of the Court;
3. After due proceedings, render a Decision which shall include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v. Romulo, "to
forthwith negotiate with the United States representatives for the appropriate agreement on [environmental
guidelines and environmental accountability] under Philippine authorities as provided in Art. V[] of the VFA ...
"
b. Direct Respondents and appropriate agencies to commence administrative, civil, and criminal
proceedings against erring officers and individuals to the full extent of the law, and to make such
proceedings public;
c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction over erring
U.S. personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of all meritorious claims
for damages caused to the Tubbataha Reef on terms and conditions no less severe than those applicable to
other States, and damages for personal injury or death, if such had been the case;
e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the collection and
production of evidence, including seizure and delivery of objects connected with the offenses related to the
grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to notify each other of the disposition of all
cases, wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or post salvage
plan or plans, including cleanup plans covering the damaged area of the Tubbataha Reef absent a just
settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations in accordance with the Local
Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a deposit to the TRNP Trust Fund
defined under Section 17 of RA 10067 as a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas affected by the grounding of the
Guardian in light of Respondents' experience in the Port Royale grounding in 2009, among other similar
grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and in the name of transparency and
accountability such environmental damage assessment, valuation, and valuation methods, in all stages of
negotiation;
4
l. Convene a multisectoral technical working group to provide scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National Defense, and the Department of
Environment and Natural Resources to review the Visiting Forces Agreement and the Mutual Defense
Treaty to consider whether their provisions allow for the exercise of erga omnes rights to a balanced and
healthful ecology and for damages which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the damaged
areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of the Visiting
Forces Agreement unconstitutional for violating equal protection and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the law of the land under Section 2, Article II, of the Philippine
Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation measures and such other reliefs as are just and
equitable under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion for early
resolution and motion to proceed ex parte against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and ocular inspection and production
orders, respondents assert that: ( 1) the grounds relied upon for the issuance of a TEPO or writ of Kalikasan have
become fait accompli as the salvage operations on the USS Guardian were already completed; (2) the petition is
defective in form and substance; (3) the petition improperly raises issues involving the VFA between the Republic of
the Philippines and the United States of America; and ( 4) the determination of the extent of responsibility of the US
Government as regards the damage to the Tubbataha Reefs rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically, it is "a party's
personal and substantial interest in a case where he has sustained or will sustain direct injury as a result" of the act
being challenged, and "calls for more than just a generalized grievance."11 However, the rule on standing is a
procedural matter which this Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and
legislators when the public interest so requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or of paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our constitutional history, is solemnly incorporated in the fundamental
law." We declared that the right to a balanced and healthful ecology need not be written in the Constitution for it is
assumed, like other civil and polittcal rights guaranteed in the Bill of Rights, to exist from the inception of mankind
and it is an issue of transcendental importance with intergenerational implications.1âwphi1 Such right carries with it
the correlative duty to refrain from impairing the environment.14
On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not only do
ordinary citizens have legal standing to sue for the enforcement of environmental rights, they can do so in
representation of their own and future generations. Thus:
5
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty
in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class
suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its
entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their exploration, development and utilization be equitably
accessible to the present a:: well as future generations. Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for the generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet unborn, is
now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The provision on citizen
suits in the Rules "collapses the traditional rule on personal and direct interest, on the principle that humans are
stewards of nature."16
Having settled the issue of locus standi, we shall address the more fundamental question of whether this Court has
jurisdiction over the US respondents who did not submit any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the
State,17is expressly provided in Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit, as follows:
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. x x x.
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." [Kawanakoa v.
Polybank, 205 U.S. 349] 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." [De Haber v.
Queen of Portugal, 17 Q. B. 171]
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. [Garcia v. Chief of Staff, 16
SCRA 120] In such a situation, the state may move to dismiss the comp.taint on the ground that it has been filed
without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:
6
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states from the
jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but
also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the
benefit of an individual but for the State, in whose service he is, under the maxim -par in parem, non habet imperium
-that all states are soverr~ign equals and cannot assert jurisdiction over one another. The implication, in broad
terms, is that if the judgment against an official would rec 1uire the state itself to perform an affirmative act to satisfy
the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must
be regarded as being against the state itself, although it has not been formally impleaded.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an immunity from
the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino employed at
Clark Air Base who was arrested following a buy-bust operation conducted by two officers of the US Air Force, and
was eventually dismissed from his employment when he was charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against the military officers, the latter moved to dismiss the case
on the ground that the suit was against the US Government which had not given its consent. The RTC denied the
motion but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC and dismissed the
complaint. We held that petitioners US military officers 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. 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.
This traditional rule of State immunity which exempts a State from being sued in the courts of another State without
the former's consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and
governmental acts (Jure imperil") from private, commercial and proprietary acts (Jure gestionis). Under the
restrictive rule of State immunity, State immunity extends only to acts Jure imperii. 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.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:
It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and
injurious to the rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action
at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming
to act for the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional
act or under an assumption of authority which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent." The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
7
xxxx
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply
and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued
in their official capacity as commanding officers of the US Navy who had control and supervision over the USS
Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on
the TRNP was committed while they we:re performing official military duties. Considering that the satisfaction of a
judgment against said officials will require remedial actions and appropriation of funds by the US government, the
suit is deemed to be one against the US itself. The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of the US in
this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused damage to the TRNP
reef system, brings the matter within the ambit of Article 31 of the United Nations Convention on the Law of the Sea
(UNCLOS). He explained that while historically, warships enjoy sovereign immunity from suit as extensions of their
flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules
and regulations of the coastal State regarding passage through the latter's internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-standing
policy the US considers itself bound by customary international rules on the "traditional uses of the oceans" as
codified in UNCLOS, as can be gleaned from previous declarations by former Presidents Reagan and Clinton, and
the US judiciary in the case of United States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid customary norms governing the
uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the relations of states with respect to the uses of the oceans."28 The
UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It
was ratified by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of the 60th
ratification.
The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare clausum) and
the principle of freedom of the high seas (mare liberum).29 The freedom to use the world's marine waters is one of
the oldest customary principles of international law.30 The UNCLOS gives to the coastal State sovereign rights in
varying degrees over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty, subject to the
UNCLOS and other rules of international law. Such sovereignty extends to the air space over the territorial sea as
well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity subject to the
following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning passage through the
territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require
it to leave the territorial sea immediately.
8
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the
non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage through the territorial sea or with the provisions of this
Convention or other rules of international law.
Article 32
Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects
the immunities of warships and other government ships operated for non-commercial purposes. (Emphasis
supplied.) A foreign warship's unauthorized entry into our internal waters with resulting damage to marine resources
is one situation in which the above provisions may apply. But what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite this the US, the
world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S. delegation
ultimately voted against and refrained from signing it due to concerns over deep seabed mining technology transfer
provisions contained in Part XI. In a remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to revise the objection.able provisions. The revisions
satisfied the Clinton administration, which signed the revised Part XI implementing agreement in 1994. In the fall of
1994, President Clinton transmitted UNCLOS and the Part XI implementing agreement to the Senate requesting its
advice and consent. Despite consistent support from President Clinton, each of his successors, and an ideologically
diverse array of stakeholders, the Senate has since withheld the consent required for the President to internationally
bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th Congresses,
its progress continues to be hamstrung by significant pockets of political ambivalence over U.S. participation in
international institutions. Most recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting out"
UNCLOS for full Senate consideration among his highest priorities. This did not occur, and no Senate action has
been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by President Reagan on March 10, 1983 that the
US will "recognize the rights of the other , states in the waters off their coasts, as reflected in the convention
[UNCLOS], so long as the rights and freedom of the United States and others under international law are recognized
by such coastal states", and President Clinton's reiteration of the US policy "to act in a manner consistent with its
[UNCLOS] provisions relating to traditional uses of the oceans and to encourage other countries to do likewise."
Since Article 31 relates to the "traditional uses of the oceans," and "if under its policy, the US 'recognize[s] the rights
of the other states in the waters off their coasts,"' Justice Carpio postulates that "there is more reason to expect it to
recognize the rights of other states in their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN CLOS was
centered on its disagreement with UN CLOS' regime of deep seabed mining (Part XI) which considers the oceans
and deep seabed commonly owned by mankind," pointing out that such "has nothing to do with its [the US']
acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the ratification of
the UNCLOS, as shown by the following statement posted on its official website:
9
The Convention is in the national interest of the United States because it establishes stable maritime zones,
including a maximum outer limit for territorial seas; codifies innocent passage, transit passage, and archipelagic sea
lanes passage rights; works against "jurisdictiomtl creep" by preventing coastal nations from expanding their own
maritime zones; and reaffirms sovereign immunity of warships, auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national interests by enhancing the ability of the US to
assert its sovereign rights over the resources of one of the largest continental shelves in the world. Further, it is the
Law of the Sea Convention that first established the concept of a maritime Exclusive Economic Zone out to 200
nautical miles, and recognized the rights of coastal states to conserve and manage the natural resources in this
Zone.35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean that the US will
disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea. We thus expect
the US to bear "international responsibility" under Art. 31 in connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and trading partner,
which has been actively supporting the country's efforts to preserve our vital marine resources, would shirk from its
obligation to compensate the damage caused by its warship while transiting our internal waters. Much less can we
comprehend a Government exercising leadership in international affairs, unwilling to comply with the UNCLOS
directive for all nations to cooperate in the global task to protect and preserve the marine environment as provided in
Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent
international organizations, in formulating and elaborating international rules, standards and recommended practices
and procedures consistent with this Convention, for the protection and preservation of the marine environment,
taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the said treaty
upholds the immunity of warships from the jurisdiction of Coastal States while navigating the.latter's territorial sea,
the flag States shall be required to leave the territorial '::;ea immediately if they flout the laws and regulations of the
Coastal State, and they will be liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke federal statutes
in the US under which agencies of the US have statutorily waived their immunity to any action. Even under the
common law tort claims, petitioners asseverate that the US respondents are liable for negligence, trespass and
nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines
to promote "common security interests" between the US and the Philippines in the region. It provides for the
guidelines to govern such visits of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.36 The invocation of US federal tort laws and even common law is
thus improper considering that it is the VF A which governs disputes involving US military ships and crew navigating
Philippine waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to special civil
actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17,
10
Rule 7 of the Rules that a criminal case against a person charged with a violation of an environmental law is to be
filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of kalikasan shall not
preclude the filing of separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-application of criminal jurisdiction
provisions of the VF A to US personnel who may be found responsible for the grounding of the USS Guardian,
would be premature and beyond the province of a petition for a writ of Kalikasan. We also find it unnecessary at this
point to determine whether such waiver of State immunity is indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of environmental laws. The Rules allows the recovery of damages,
including the collection of administrative fines under R.A. No. 10067, in a separate civil suit or that deemed instituted
with the criminal action charging the same violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of Kalikasan, to
wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or neglecting the
performance of a duty in violation of environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, govemment agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to monitor strict
compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to make periodic
reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration of the environment, except the award of damages to
individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has become moot in the sense that the
salvage operation sought to be enjoined or restrained had already been accomplished when petitioners sought
recourse from this Court. But insofar as the directives to Philippine respondents to protect and rehabilitate the coral
reef stn icture and marine habitat adversely affected by the grounding incident are concerned, petitioners are
entitled to these reliefs notwithstanding the completion of the removal of the USS Guardian from the coral reef.
However, we are mindful of the fact that the US and Philippine governments both expressed readiness to negotiate
and discuss the matter of compensation for the damage caused by the USS Guardian. The US Embassy has also
declared it is closely coordinating with local scientists and experts in assessing the extent of the damage and
appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be gleaned from the
following provisions, mediation and settlement are available for the consideration of the parties, and which dispute
resolution methods are encouraged by the court, to wit:
RULE3
xxxx
11
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the parties if they
have settled the dispute; otherwise, the court shall immediately refer the parties or their counsel, if authorized by
their clients, to the Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall
refer the case to the clerk of court or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of referral to
mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-trial. Before the
scheduled date of continuance, the court may refer the case to the branch clerk of court for a preliminary conference
for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels under oath, and
they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may
issue a consent decree approving the agreement between the parties in accordance with law, morals, public order
and public policy to protect the right of the people to a balanced and healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or settle in
accordance with law at any stage of the proceedings before rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port Royal, ran
aground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four days. After spending
$6.5 million restoring the coral reef, the US government was reported to have paid the State of Hawaii $8.5 million in
settlement over coral reef damage caused by the grounding.38
To underscore that the US government is prepared to pay appropriate compensation for the damage caused by the
USS Guardian grounding, the US Embassy in the Philippines has announced the formation of a US interdisciplinary
scientific team which will "initiate discussions with the Government of the Philippines to review coral reef
rehabilitation options in Tubbataha, based on assessments by Philippine-based marine scientists." The US team
intends to "help assess damage and remediation options, in coordination with the Tubbataha Management Office,
appropriate Philippine government entities, non-governmental organizations, and scientific experts from Philippine
universities."39
A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief that may be
obtained under a judgment rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs which shall
include the protection, preservation or rehabilitation of the environment and the payment of attorney's fees, costs of
suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration
of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that
purpose subject to the control of the court.1âwphi1
12
In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our relations with
another State in the context of common security interests under the VFA. It is settled that "[t]he conduct of the
foreign relations of our government is committed by the Constitution to the executive and legislative-"the political" --
departments of the government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of the VFA and
to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly
authorized representative of the United States government. The VF A being a valid and binding agreement, the
parties are required as a matter of international law to abide by its terms and provisions.42 The present petition
under the Rules is not the proper remedy to assail the constitutionality of its provisions. WHEREFORE, the petition
for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.

Associate Justice
1
G.R. No. L-23127 April 29, 1971
FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee,

vs.
PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF PANGASINAN, defendants, PHILIPPINE
NATIONAL BANK, defendant-appellant.
Dionisio E. Moya for plaintiff-appellee.
Ramon B. de los Reyes for defendant-appellant.
FERNANDO, J.:
A correct appreciation of the controlling doctrine as to the effect, if any, to be attached to a statute subsequently
adjudged invalid, is decisive of this appeal from a lower court decision. Plaintiff Francisco Serrano de Agbayani, now
appellee, was able to obtain a favorable judgment in her suit against defendant, now appellant Philippine National
Bank, permanently enjoining the other defendant, the Provincial Sheriff of Pangasinan, from proceeding with an
extra-judicial foreclosure sale of land belonging to plaintiff mortgaged to appellant Bank to secure a loan declared no
longer enforceable, the prescriptive period having lapsed. There was thus a failure to sustain the defense raised by
appellant that if the moratorium under an Executive Order and later an Act subsequently found unconstitutional were
to be counted in the computation, then the right to foreclose the mortgage was still subsisting. In arriving at such a
conclusion, the lower court manifested a tenacious adherence to the inflexible view that an unconstitutional act is
not a law, creating no rights and imposing no duties, and thus as inoperative as if it had never been. It was oblivious
to the force of the principle adopted by this Court that while a statute's repugnancy to the fundamental law deprives
it of its character as a juridical norm, its having been operative prior to its being nullified is a fact that is not devoid of
legal consequences. As will hereafter be explained, such a failing of the lower court resulted in an erroneous
decision. We find for appellant Philippine National Bank, and we reverse.
There is no dispute as to the facts. Plaintiff obtained the loan in the amount of P450.00 from defendant Bank dated
July 19, 1939, maturing on July 19, 1944, secured by real estate mortgage duly registered covering property
described in T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the balance due on said
loan was in the amount of P1,294.00. As early as July 13 of the same year, defendant instituted extra-judicial
foreclosure proceedings in the office of defendant Provincial Sheriff of Pangasinan for the recovery of the balance of
the loan remaining unpaid. Plaintiff countered with his suit against both defendants on August 10, 1959, her main
allegation being that the mortgage sought to be foreclosed had long prescribed, fifteen years having elapsed from
the date of maturity, July 19, 1944. She sought and was able to obtain a writ of preliminary injunction against
defendant Provincial Sheriff, which was made permanent in the decision now on appeal. Defendant Bank in its
answer prayed for the dismissal of the suit as even on plaintiff's own theory the defense of prescription would not be
available if the period from March 10, 1945, when Executive Order No. 321 was issued, to July 26, 1948, when the
subsequent legislative act2 extending the period of moratorium was declared invalid, were to be deducted from the
computation of the time during which the bank took no legal steps for the recovery of the loan. As noted, the lower
court did not find such contention persuasive and decided the suit in favor of plaintiff.
Hence this appeal, which, as made clear at the outset, possesses merit, there being a failure on the part of the lower
court to adhere to the applicable constitutional doctrine as to the effect to be given to a statute subsequently
declared invalid.
1. The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive
order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or
duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared
results in its being to all intents and purposes a mere scrap of paper. As the new Civil Code puts it: "When the
courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of
the Constitution.3 It is understandable why it should be so, the Constitution being supreme and paramount. Any
legislative or executive act contrary to its terms cannot survive.
2
Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It
does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have
been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its
invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their
positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while
such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a
doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not
a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and
justice then, if there be no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: "The actual existence of a statute, prior to such a
determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be
ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate,
and particular conduct, private and official."4 This language has been quoted with approval in a resolution in Araneta
v. Hill5 and the decision in Manila Motor Co., Inc. v. Flores.6 An even more recent instance is the opinion of Justice
Zaldivar speaking for the Court in Fernandez v. Cuerva and Co.7
2. Such an approach all the more commends itself whenever police power legislation intended to promote public
welfare but adversely affecting property rights is involved. While subject to be assailed on due process, equal
protection and non-impairment grounds, all that is required to avoid the corrosion of invalidity is that the rational
basis or reasonableness test is satisfied. The legislature on the whole is not likely to allow an enactment suffering, to
paraphrase Cardozo, from the infirmity of out running the bounds of reason and resulting in sheer oppression. It may
be of course that if challenged, an adverse judgment could be the result, as its running counter to the Constitution
could still be shown. In the meanwhile though, in the normal course of things, it has been acted upon by the public
and accepted as valid. To ignore such a fact would indeed be the fruitful parent of injustice. Moreover, as its
constitutionality is conditioned on its being fair or reasonable, which in turn is dependent on the actual situation,
never static but subject to change, a measure valid when enacted may subsequently, due to altered circumstances,
be stricken down.
That is precisely what happened in connection with Republic Act No. 342, the moratorium legislation, which
continued Executive Order No. 32, issued by the then President Osmeña, suspending the enforcement of payment
of all debts and other monetary obligations payable by war sufferers. So it was explicitly held in Rutter v.
Esteban8where such enactment was considered in 1953 "unreasonable and oppressive, and should not be
prolonged a minute longer, and, therefore, the same should be declared null and void and without effect."9 At the
time of the issuance of the above Executive Order in 1945 and of the passage of such Act in 1948, there was a
factual justification for the moratorium. The Philippines was confronted with an emergency of impressive magnitude
at the time of her liberation from the Japanese military forces in 1945. Business was at a standstill. Her economy lay
prostrate. Measures, radical measures, were then devised to tide her over until some semblance of normalcy could
be restored and an improvement in her economy noted. No wonder then that the suspension of enforcement of
payment of the obligations then existing was declared first by executive order and then by legislation. The Supreme
Court was right therefore in rejecting the contention that on its face, the Moratorium Law was unconstitutional,
amounting as it did to the impairment of the obligation of contracts. Considering the circumstances confronting the
legitimate government upon its return to the Philippines, some such remedial device was needed and badly so. An
unyielding insistence then on the rights to property on the part of the creditors was not likely to meet with judicial
sympathy. Time passed however, and conditions did change.
When the legislation was before this Court in 1953, the question before it was its satisfying the rational basis test,
not as of the time of its enactment but as of such date. Clearly, if then it were found unreasonable, the right to non-
impairment of contractual obligations must prevail over the assertion of community power to remedy an existing evil.
The Supreme Court was convinced that such indeed was the case. As stated in the opinion of Justice Bautista
Angelo: "But we should not lose sight of the fact that these obligations had been pending since 1945 as a result of
the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of the
enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year period granted to
3
prewar debtors to afford them an opportunity to rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12) years before they could affect a liquidation of their
investment dating as far back as 1941. This period seems to us unreasonable, if not oppressive. While the purpose
of Congress is plausible, and should be commended, the relief accorded works injustice to creditors who are
practically left at the mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if the
credits are unsecured. And the injustice is more patent when, under the law the debtor is not even required to pay
interest during the operation of the relief, unlike similar statutes in the United States. 10 The conclusion to which the
foregoing considerations inevitably led was that as of the time of adjudication, it was apparent that Republic Act No.
342 could not survive the test of validity. Executive Order No. 32 should likewise be nullified. That before the
decision they were not constitutionally infirm was admitted expressly. There is all the more reason then to yield
assent to the now prevailing principle that the existence of a statute or executive order prior to its being adjudged
void is an operative fact to which legal consequences are attached.
3. Precisely though because of the judicial recognition that moratorium was a valid governmental response to the
plight of the debtors who were war sufferers, this Court has made clear its view in a series of cases impressive in
their number and unanimity that during the eight-year period that Executive Order No. 32 and Republic Act No. 342
were in force, prescription did not run. So it has been held from Day v. Court of First
Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last year. What is deplorable is that as of
the time of the lower court decision on January 27, 1960, at least eight decisions had left no doubt as to the
prescriptive period being tolled in the meanwhile prior to such adjudication of invalidity. 13 Speaking of the opposite
view entertained by the lower court, the present Chief Justice, in Liboro v. Finance and Mining Investments
Corp. 14has categorized it as having been "explicitly and consistently rejected by this Court." 15
The error of the lower court in sustaining plaintiff's suit is thus manifest. From July 19, 1944, when her loan matured,
to July 13, 1959, when extra-judicial foreclosure proceedings were started by appellant Bank, the time consumed is
six days short of fifteen years. The prescriptive period was tolled however, from March 10, 1945, the effectivity of
Executive Order No. 32, to May 18, 1953, when the decision of Rutter v. Esteban was promulgated, covering eight
years, two months and eight days. Obviously then, when resort was had extra-judicially to the foreclosure of the
mortgage obligation, there was time to spare before prescription could be availed of as a defense.
WHEREFORE, the decision of January 27, 1960 is reversed and the suit of plaintiff filed August 10, 1959 dismissed.
No costs.
1
G.R. No. 209287 February 3, 2015
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN; JUDY M.

TAGUIWALO, PROFESSOR, UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-CHAIRPERSON,
PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA
WOMEN'S PARTY REPRESENTATIVE; REP. TERRY L. RIDON, KABATAAN PARTYLIST REPRESENTATIVE;
REP. CARLOS ISAGANI ZARATE, BAYAN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR.,
SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN PARTY; VENCER
MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR, YOUTH ACT
NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO N.
OCHOA, JR., EXECUTIVE SECRETARY; AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT
OF BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209135
AUGUSTO L. SYJUCO JR., Ph.D., Petitioner,

vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT OF BUDGET AND
MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON, IN HIS CAPACITY AS THE SENATE
PRESIDENT OF THE PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,

vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE DEPARTMENT OF BUDGET
AND MANAGEMENT; AND EXECUTIVE SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS
ALTER EGO OF THE PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALVAR VILLEGAS, JR. Petitioner

vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE SECRETARY OF BUDGET
AND MANAGEMENT FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY DEAN FROILAN M.

BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M. BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B. ABAD, Respondents.
x-----------------------x
2
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,

vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT
(DBM),Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN M. ABANTE AND REV. JOSE L.
GONZALEZ,Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE PHILIPPINES, REPRESENTED BY
SENATE PRESIDENT FRANKLIN M. DRILON; THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
SPEAKER FELICIANO BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND MANAGEMENT,
REPRESENTED BY SECRETARY FLORENCIO ABAD; THE DEPARTMENT OF FINANCE, REPRESENTED BY
SECRETARY CESAR V. PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V. DE
LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES

(COURAGE), REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA
NARTATES, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF
EMPLOYEES NATIONAL HOUSING AUTHORITY (CUE-NHA); MANUEL BACLAGON, FOR HIMSELF AND AS
PRESIDENT OF THE SOCIAL WELFARE EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT
OF SOCIAL WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO); ANTONIA PASCUAL,
FOR HERSELF AND AS NATIONAL PRESIDENT OF THE DEPARTMENT OF AGRARIAN REFORM
EMPLOYEES ASSOCIATION (DAREA); ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE
ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU); AND MARCIAL ARABA, FOR
HIMSELF AND AS PRESIDENT OF THE KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA
(KKK-MMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO OCHOA,
JR., EXECUTIVE SECRETARY; AND HON. FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (V ACC), REPRESENTED BY DANTE L.

JIMENEZ,Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
RESOLUTION
BERSAMIN, J.:
3
The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be
allowed to sap its strength nor greed for power debase its rectitude.1
Before the Court are the Motion for Reconsideration2 filed by the respondents, and the Motion for Partial
Reconsideration3 filed by the petitioners in G.R. No. 209442.
In their Motion for Reconsideration, the respondents assail the decision4 promulgated on July 1 2014 upon the
following procedural and substantive errors, viz:
PROCEDURAL
I
WITHOUT AN ACTUAL CASE OR CONTROVERSY, ALLEGATIONS OF GRAVE ABUSE OF DISCRETION ON
THE PART OF ANY INSTRUMENTALITY OF THE GOVERNMENT CANNOT CONFER ON THIS HONORABLE
COURT THE POWER TO DETERMINE THE CONSTITUTIONALITY OF THE DAP AND NBC NO. 541
II
PETITIONERS’ ACTIONS DO NOT PRESENT AN ACTUAL CASE OR CONTROVERSY AND THEREFORE THIS
HONORABLE COURT DID NOT ACQUIRE JURISDICTION
III
PETITIONERS HAVE NEITHER BEEN INJURED NOR THREATENED WITH INJURY AS A RESULT OF THE
OPERATION OF THE DAP AND THEREFORE SHOULD HAVE BEEN HELD TO HAVE NO STANDING TO BRING
THESE SUITS FOR CERTIORARI AND PROHIBITION
IV
NOR CAN PETITIONERS’ STANDING BE SUSTAINED ON THE GROUND THAT THEY ARE BRINGING THESE
SUITS AS CITIZENS AND AS TAXPAYERS
V
THE DECISION OF THIS HONORABLE COURT IS NOT BASED ON A CONSIDERATION OF THE ACTUAL
APPLICATIONS OF THE DAP IN 116 CASES BUT SOLELY ON AN ABSTRACT CONSIDERATION OF NBC NO.
5415
SUBSTANTIVE
I
THE EXECUTIVE DEPARTMENT PROPERLY INTERPRETED "SAVINGS" UNDER THE RELEVANT
PROVISIONS OF THE GAA
II
ALL DAP APPLICATIONS HAVE APPROPRIATION COVER
III
THE PRESIDENT HAS AUTHORITY TO TRANSFER SAVINGS TO OTHER DEPARTMENTS PURSUANT TO HIS
CONSTITUTIONAL POWERS
IV
THE 2011, 2012 AND 2013 GAAS ONLY REQUIRE THAT REVENUE COLLECTIONS FROM EACH SOURCE OF
REVENUE ENUMERATED IN THE BUDGET PROPOSAL MUST EXCEED THE CORRESPONDING REVENUE
TARGET
V
THE OPERATIVE FACT DOCTRINE WAS WRONGLY APPLIED6
4
The respondents maintain that the issues in these consolidated cases were mischaracterized and unnecessarily
constitutionalized; that the Court’s interpretation of savings can be overturned by legislation considering that savings
is defined in the General Appropriations Act (GAA), hence making savings a statutory issue;7 that the withdrawn
unobligated allotments and unreleased appropriations constitute savings and may be used for augmentation;8 and
that the Court should apply legally recognized norms and principles, most especially the presumption of good faith,
in resolving their motion.9
On their part, the petitioners in G.R. No. 209442 pray for the partial reconsideration of the decision on the ground
that the Court thereby:
FAILED TO DECLARE AS UNCONSTITUTIONAL AND ILLEGAL ALL MONEYS UNDER THE DISBURSEMENT
ACCELERATION PROGRAM (DAP) USED FOR ALLEGED AUGMENTATION OF APPROPRIATION ITEMS THAT
DID NOT HAVE ACTUAL DEFICIENCIES10
They submit that augmentation of items beyond the maximum amounts recommended by the President for the
programs, activities and projects (PAPs) contained in the budget submitted to Congress should be declared
unconstitutional.
Ruling of the Court
We deny the motion for reconsideration of the petitioners in G.R. No. 209442, and partially grant the motion for
reconsideration of the respondents.
The procedural challenges raised by the respondents, being a mere rehash of their earlier arguments herein, are
dismissed for being already passed upon in the assailed decision.
As to the substantive challenges, the Court discerns that the grounds are also reiterations of the arguments that
were already thoroughly discussed and passed upon in the assailed decision. However, certain declarations in our
July 1, 2014 Decision are modified in order to clarify certain matters and dispel further uncertainty.
1.
The Court’s power of judicial review
The respondents argue that the Executive has not violated the GAA because savings as a conceptis an ordinary
species of interpretation that calls for legislative, instead of judicial, determination.11
This argument cannot stand.
The consolidated petitions distinctly raised the question of the constitutionality of the acts and practices under the
DAP, particularly their non-conformity with Section 25(5), Article VI of the Constitution and the principles of
separation of power and equal protection. Hence, the matter is still entirely within the Court’s competence, and its
determination does not pertain to Congress to the exclusion of the Court. Indeed, the interpretation of the GAA and
its definition of savings is a foremost judicial function. This is because the power of judicial review vested in the
Court is exclusive. As clarified in Endencia and Jugo v. David:12
Under our system of constitutional government, the Legislative department is assigned the power to make and enact
laws. The Executive department is charged with the execution of carrying out of the provisions of said laws. But the
interpretation and application of said laws belong exclusively to the Judicial department. And this authority to
interpret and apply the laws extends to the Constitution. Before the courts can determine whether a law is
constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent
portion of the Constitution in order to decide whether there is a conflict between the two, because if there is, then the
law will have to give way and has to be declared invalid and unconstitutional.
xxxx
5
We have already said that the Legislature under our form of government is assigned the task and the power to make
and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the
Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law
means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertain
its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial
processes and court decisions. Under such a system, a final court determination of a case based on a judicial
interpretation of the law of the Constitution may be undermined or even annulled by a subsequent and different
interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor
desirable, besides being clearly violative of the fundamental, principles of our constitutional system of government,
particularly those governing the separation of powers.13
The respondents cannot also ignore the glaring fact that the petitions primarily and significantly alleged grave abuse
of discretion on the part of the Executive in the implementation of the DAP. The resolution of the petitions thus
demanded the exercise by the Court of its aforedescribed power of judicial review as mandated by the Constitution.
2.
Strict construction on the accumulation and utilization of savings
The decision of the Court has underscored that the exercise of the power to augment shall be strictly construed by
virtue of its being an exception to the general rule that the funding of PAPs shall be limited to the amount fixed by
Congress for the purpose.14 Necessarily, savings, their utilization and their management will also be strictly
construed against expanding the scope of the power to augment.15 Such a strict interpretation is essential in order to
keep the Executive and other budget implementors within the limits of their prerogatives during budget execution,
and to prevent them from unduly transgressing Congress’ power of the purse.16 Hence, regardless of the perceived
beneficial purposes of the DAP, and regardless of whether the DAP is viewed as an effective tool of stimulating the
national economy, the acts and practices under the DAP and the relevant provisions of NBC No. 541 cited in the
Decision should remain illegal and unconstitutional as long as the funds used to finance the projects mentioned
therein are sourced from savings that deviated from the relevant provisions of the GAA, as well as the limitation on
the power to augment under Section 25(5), Article VI of the Constitution. In a society governed by laws, even the
best intentions must come within the parameters defined and set by the Constitution and the law. Laudable
purposes must be carried out through legal methods.17
Respondents contend, however, that withdrawn unobligated allotments and unreleased appropriations under the
DAP are savings that may be used for augmentation, and that the withdrawal of unobligated allotments were made
pursuant to Section 38 Chapter 5, Book VI of the Administrative Code;18 that Section 38 and Section 39, Chapter 5,
Book VI of the Administrative Code are consistent with Section 25(5), Article VI of the Constitution, which, taken
together, constitute "a framework for which economic managers of the nation may pull various levers in the form of
authorization from Congress to efficiently steer the economy towards the specific and general purposes of the
GAA;"19 and that the President’s augmentation of deficient items is in accordance with the standing authority issued
by Congress through Section 39.
Section 25(5), Article VI of the Constitution states:
Section 25. x x x x x x x
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for
their respective offices from savings in other items of their respective appropriations.
xxxx
Section 38 and Section 39, Chapter 5, Book VI of the Administrative Code provide:
6
Section 38. Suspension of Expenditure of Appropriations. - Except as otherwise provided in the General
Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the
head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any
agency, or any other expenditure authorized in the General Appropriations Act, except for personal services
appropriations used for permanent officials and employees.
Section 39. Authority to Use Savings in Appropriations to Cover Deficits.—Except as otherwise provided in the
General Appropriations Act, any savings in the regular appropriations authorized in the General Appropriations Act
for programs and projects of any department, office or agency, may, with the approval of the President, be used to
cover a deficit in any other item of the regular appropriations: Provided, that the creation of new positions or
increase of salaries shall not be allowed to be funded from budgetary savings except when specifically authorized
by law: Provided, further, that whenever authorized positions are transferred from one program or project to another
within the same department, office or agency, the corresponding amounts appropriated for personal services are
also deemed transferred, without, however increasing the total outlay for personal services of the department, office
or agency concerned. (Bold underscoring supplied for emphasis)
In the Decision, we said that:
Unobligated allotments, on the other hand, were encompassed by the first part of the definition of "savings" in the
GAA, that is, as "portions or balances of any programmed appropriation in this Act free from any obligation or
encumbrance." But the first part of the definition was further qualified by the three enumerated instances of when
savings would be realized. As such, unobligated allotments could not be indiscriminately declared as savings
without first determining whether any of the three instances existed. This signified that the DBM’s withdrawal of
unobligated allotments had disregarded the definition of savings under the GAAs.
xxxx
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to justify the withdrawal
of unobligated allotments. But the provision authorized only the suspension or stoppage of further expenditures, not
the withdrawal of unobligated allotments, to wit:
xxxx
Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38, supra, but instead
transferred the funds to other PAPs.20
We now clarify.
Section 38 refers to the authority of the President "to suspend or otherwise stop further expenditure of funds allotted
for any agency, or any other expenditure authorized in the General Appropriations Act." When the President
suspends or stops expenditure of funds, savings are not automatically generated until it has been established that
such funds or appropriations are free from any obligation or encumbrance, and that the work, activity or purpose for
which the appropriation is authorized has been completed, discontinued or abandoned.
It is necessary to reiterate that under Section 5.7 of NBC No. 541, the withdrawn unobligated allotments may be:
5.7.1 Reissued for the original programs and projects of the agencies/OUs concerned, from which the allotments
were withdrawn;
5.7.2 Realigned to cover additional funding for other existing programs and projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency and to fund priority programs and projects not
considered in the 2012 budget but expected to be started or implemented during the current year.
7
Although the withdrawal of unobligated allotments may have effectively resulted in the suspension or stoppage of
expenditures through the issuance of negative Special Allotment Release Orders (SARO), the reissuance of
withdrawn allotments to the original programs and projects is a clear indication that the program or project from
which the allotments were withdrawn has not been discontinued or abandoned. Consequently, as we have pointed
out in the Decision, "the purpose for which the withdrawn funds had been appropriated was not yet fulfilled, or did
not yet cease to exist, rendering the declaration of the funds as savings impossible."21 In this regard, the withdrawal
and transfer of unobligated allotments remain unconstitutional. But then, whether the withdrawn allotments have
actually been reissued to their original programs or projects is a factual matter determinable by the proper tribunal.
Also, withdrawals of unobligated allotments pursuant to NBC No. 541 which shortened the availability of
appropriations for MOOE and capital outlays, and those which were transferred to PAPs that were not determined to
be deficient, are still constitutionally infirm and invalid.
At this point, it is likewise important to underscore that the reversion to the General Fund of unexpended balances of
appropriations – savings included – pursuant to Section 28 Chapter IV, Book VI of the Administrative Code22 does
not apply to the Constitutional Fiscal Autonomy Group (CFAG), which include the Judiciary, Civil Service
Commission, Commission on Audit, Commission on Elections, Commission on Human Rights, and the Office of the
Ombudsman. The reason for this is that the fiscal autonomy enjoyed by the CFAG –
x x x contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch
that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of
compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government
and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the
discharge of their functions.
Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM
rules we need only 10 typewriters and sends its recommendations to Congress without even informing us, the
autonomy given by the Constitution becomes an empty and illusory platitude.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional
system is based. x x x23
On the other hand, Section 39 is evidently in conflict with the plain text of Section 25(5), Article VI of the Constitution
because it allows the President to approve the use of any savings in the regular appropriations authorized in the
GAA for programs and projects of any department, office or agency to cover a deficit in any other item of the regular
appropriations. As such, Section 39 violates the mandate of Section 25(5) because the latter expressly limits the
authority of the President to augment an item in the GAA to only those in his own Department out of the savings in
other items of his own Department’s appropriations. Accordingly, Section 39 cannot serve as a valid authority to
justify cross-border transfers under the DAP. Augmentations under the DAP which are made by the Executive within
its department shall, however, remain valid so long as the requisites under Section 25(5) are complied with.
In this connection, the respondents must always be reminded that the Constitution is the basic law to which all laws
must conform. No act that conflicts with the Constitution can be valid.24 In Mutuc v. Commission on
Elections,25therefore, we have emphasized the importance of recognizing and bowing to the supremacy of the
Constitution:
x x x The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public
act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of
government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost
rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is
[sic] entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be
observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, whether
8
substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what
it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to
maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity
of the acts of the coordinate branches in the course of adjudication is a logical corollary of this basic principle that
the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby
there is a recognition of its being the supreme law.
Also, in Biraogo v. Philippine Truth Commission of 2010,26 we have reminded that: – The role of the Constitution
cannot be overlooked. It is through the Constitution that the fundamental powers of government are established,
limited and defined, and by which these powers are distributed among the several departments. The Constitution is
the basic and paramount law to which all other laws must conform and to which all persons, including the highest
officials of the land, must defer. Constitutional doctrines must remain steadfast no matter what may be the tides of
time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the
whims and caprices of government and the people who run it.27
3.
The power to augment cannot be used to fund non-existent provisions in the GAA
The respondents posit that the Court has erroneously invalidated all the DAP-funded projects by overlooking the
difference between an item and an allotment class, and by concluding that they do not have appropriation cover;
and that such error may induce Congress and the Executive (through the DBM) to ensure that all items should have
at least ₱1 funding in order to allow augmentation by the President.28
At the outset, we allay the respondents’ apprehension regarding the validity of the DAP funded projects. It is to be
emphatically indicated that the Decision did not declare the en masse invalidation of the 116 DAP-funded projects.
To be sure, the Court recognized the encouraging effects of the DAP on the country’s economy,29 and
acknowledged its laudable purposes, most especially those directed towards infrastructure development and
efficient delivery of basic social services.30 It bears repeating that the DAP is a policy instrument that the Executive,
by its own prerogative, may utilize to spur economic growth and development.
Nonetheless, the Decision did find doubtful those projects that appeared to have no appropriation cover under the
relevant GAAs on the basis that: (1) the DAP funded projects that originally did not contain any appropriation for
some of the expense categories (personnel, MOOE and capital outlay); and (2) the appropriation code and the
particulars appearing in the SARO did not correspond with the program specified in the GAA. The respondents
assert, however, that there is no constitutional requirement for Congress to create allotment classes within an item.
What is required is for Congress to create items to comply with the line-item veto of the President.31
After a careful reexamination of existing laws and jurisprudence, we find merit in the respondents’ argument.
Indeed, Section 25(5) of the 1987 Constitution mentions of the term item that may be the object of augmentation by
the President, the Senate President, the Speaker of the House, the Chief Justice, and the heads of the
Constitutional Commissions. In Belgica v. Ochoa,32 we said that an item that is the distinct and several part of the
appropriation bill, in line with the item-veto power of the President, must contain "specific appropriations of money"
and not be only general provisions, thus:
For the President to exercise his item-veto power, it necessarily follows that there exists a proper "item" which may
be the object of the veto. An item, as defined in the field of appropriations, pertains to "the particulars, the details,
the distinct and severable parts of the appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of
the Philippine Islands, the US Supreme Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of money, not
some general provision of law which happens to be put into an appropriation bill. (Emphases supplied)
9
On this premise, it may be concluded that an appropriation bill, to ensure that the President may be able to exercise
his power of item veto, must contain "specific appropriations of money" and notonly "general provisions" which
provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an item characterized by singular
correspondence – meaning an allocation of a specified singular amount for a specified singular purpose, otherwise
known as a "line-item." This treatment not only allows the item to be consistent with its definition as a "specific
appropriation of money" but also ensures that the President may discernibly veto the same. Based on the foregoing
formulation, the existing Calamity Fund, Contingent Fund and the Intelligence Fund, being appropriations which
state a specified amount for a specific purpose, would then be considered as "line-item" appropriations which are
rightfully subject to item veto. Likewise, it must be observed that an appropriation may be validly apportioned into
component percentages or values; however, it is crucial that each percentage or value must be allocated for its own
corresponding purpose for such component to be considered as a proper line-item. Moreover, as Justice Carpio
correctly pointed out, a valid appropriation may even have several related purposes that are by accounting and
budgeting practice considered as one purpose, e.g., MOOE (maintenance and other operating expenses), in which
case the related purposes shall be deemed sufficiently specific for the exercise of the President‘s item veto power.
Finally, special purpose funds and discretionary funds would equally square with the constitutional mechanism of
item-veto for as long as they follow the rule on singular correspondence as herein discussed. x x x (Emphasis
supplied)33
Accordingly, the item referred to by Section 25(5) of the Constitution is the last and indivisible purpose of a program
in the appropriation law, which is distinct from the expense category or allotment class. There is no specificity,
indeed, either in the Constitution or in the relevant GAAs that the object of augmentation should be the expense
category or allotment class. In the same vein, the President cannot exercise his veto power over an expense
category; he may only veto the item to which that expense category belongs to.
Further, in Nazareth v. Villar,34 we clarified that there must be an existing item, project or activity, purpose or object
of expenditure with an appropriation to which savings may be transferred for the purpose of augmentation.
Accordingly, so long as there is an item in the GAA for which Congress had set aside a specified amount of public
fund, savings may be transferred thereto for augmentation purposes. This interpretation is consistent not only with
the Constitution and the GAAs, but also with the degree of flexibility allowed to the Executive during budget
execution in responding to unforeseeable contingencies.
Nonetheless, this modified interpretation does not take away the cave at that only DAP projects found in the
appropriate GAAs may be the subject of augmentation by legally accumulated savings. Whether or not the 116
DAP-funded projects had appropriation cover and were validly augmented require factual determination that is not
within the scope of the present consolidated petitions under Rule 65.
4.
Cross-border transfers are constitutionally impermissible
The respondents assail the pronouncement of unconstitutionality of cross-border transfers made by the President.
They submit that Section 25(5), Article VI of the Constitution prohibits only the transfer of appropriation, not savings.
They relate that cross-border transfers have been the practice in the past, being consistent with the President’s role
as the Chief Executive.35
In view of the clarity of the text of Section 25(5), however, the Court stands by its pronouncement, and will not brook
any strained interpretations.
5.
Unprogrammed funds may only be released upon proof that the total revenues exceeded the target
10
Based on the 2011, 2012 and 2013 GAAs, the respondents contend that each source of revenue in the budget
proposal must exceed the respective target to authorize release of unprogrammed funds. Accordingly, the Court’s
ruling thereon nullified the intention of the authors of the unprogrammed fund, and renders useless the special
provisions in the relevant GAAs.36
The respondents’ contentions are without merit.
To recall, the respondents justified the use of unprogrammed funds by submitting certifications from the Bureau of
Treasury and the Department of Finance (DOF) regarding the dividends derived from the shares of stock held by the
Government in government-owned and controlled corporations.37 In the decision, the Court has held that the
requirement under the relevant GAAs should be construed in light of the purpose for which the unprogrammed funds
were denominated as "standby appropriations." Hence, revenue targets should be considered as a whole, not
individually; otherwise, we would be dealing with artificial revenue surpluses. We have even cautioned that the
release of unprogrammed funds based on the respondents’ position could be unsound fiscal management for
disregarding the budget plan and fostering budget deficits, contrary to the Government’s surplus budget policy.38
While we maintain the position that aggregate revenue collection must first exceed aggregate revenue target as a
pre-requisite to the use of unprogrammed funds, we clarify the respondents’ notion that the release of
unprogrammed funds may only occur at the end of the fiscal year.
There must be consistent monitoring as a component of the budget accountability phase of every agency’s
performance in terms of the agency’s budget utilization as provided in Book VI, Chapter 6, Section 51 and Section
52 of the Administrative Code of 1987,which state:
SECTION 51. Evaluation of Agency Performance.—The President, through the Secretary shall evaluate on a
continuing basis the quantitative and qualitative measures of agency performance as reflected in the units of work
measurement and other indicators of agency performance, including the standard and actual costs per unit of work.
SECTION 52. Budget Monitoring and Information System.—The Secretary of Budget shall determine accounting
and other items of information, financial or otherwise, needed to monitor budget performance and to assess
effectiveness of agencies’ operations and shall prescribe the forms, schedule of submission, and other components
of reporting systems, including the maintenance of subsidiary and other records which will enable agencies to
accomplish and submit said information requirements: Provided, that the Commission on Audit shall, in coordination
with the Secretary of Budget, issue rules and regulations that may be applicable when the reporting requirements
affect accounting functions of agencies: Provided, further, that the applicable rules and regulations shall be issued
by the Commission on Audit within a period of thirty (30) days after the Department of Budget and Management
prescribes the reporting requirements.
Pursuant to the foregoing, the Department of Budget and Management (DBM) and the Commission on Audit (COA)
require agencies under various joint circulars to submit budget and financial accountability reports (BFAR) on a
regular basis,39 one of which is the Quarterly Report of Income or Quarterly Report of Revenue and Other
Receipts.40 On the other hand, as Justice Carpio points out in his Separate Opinion, the Development Budget
Coordination Committee (DBCC) sets quarterly revenue targets for aspecific fiscal year.41 Since information on both
actual revenue collections and targets are made available every quarter, or at such time as the DBM may prescribe,
actual revenue surplus may be determined accordingly and eleases from the unprogrammed fund may take place
even prior to the end of the fiscal year.42
In fact, the eleventh special provision for unprogrammed funds in the 2011 GAA requires the DBM to submit
quarterly reports stating the details of the use and releases from the unprogrammed funds, viz:
11. Reportorial Requirement. The DBM shall submit to the House Committee on Appropriations and the Senate
Committee on Finance separate quarterly reports stating the releases from the Unprogrammed Fund, the amounts
released and purposes thereof, and the recipient departments, bureaus, agencies or offices, GOCCs and GFIs,
including the authority under which the funds are released under Special Provision No. 1 of the Unprogrammed
Fund.
11
Similar provisions are contained in the 2012 and 2013 GAAs.43
However, the Court’s construction of the provision on unprogrammed funds is a statutory, not a constitutional,
interpretation of an ambiguous phrase. Thus, the construction should be given prospective effect.44
6.
The presumption of good faith stands despite the obiter pronouncement
The remaining concern involves the application of the operative fact doctrine.
The respondents decry the misapplication of the operative fact doctrine, stating:
110. The doctrine of operative fact has nothing to do with the potential liability of persons who acted pursuant to a
then-constitutional statute, order, or practice. They are presumed to have acted in good faith and the court cannot
load the dice, so to speak, by disabling possible defenses in potential suits against so-called "authors, proponents
and implementors." The mere nullification are still deemed valid on the theory that judicial nullification is a contingent
or unforeseen event.
111. The cases before us are about the statutory and constitutional interpretations of so-called acts and practices
under a government program, DAP. These are not civil, administrative, or criminal actions against the public officials
responsible for DAP, and any statement about bad faith may be unfairly and maliciously exploited for political ends.
At the same time, any negation of the presumption of good faith, which is the unfortunate implication of paragraphs
3 and 4 of page 90 of the Decision, violates the constitutional presumption of innocence, and is inconsistent with the
Honorable Court’s recognition that "the implementation of the DAP yielded undeniably positive results that
enhanced the economic welfare of the country."
112. The policy behind the operative fact doctrine is consistent with the idea that regardless of the nullification of
certain acts and practices under the DAP and/or NBC No. 541, it does not operate to impute bad faith to authors,
proponents and implementors who continue to enjoy the presumption of innocence and regularity in the
performance of official functions and duties. Good faith is presumed, whereas bad faith requires the existence of
facts. To hold otherwise would send a chilling effect to all public officers whether of minimal or significant discretion,
the result of which would be a dangerous paralysis of bureaucratic activity.45 (Emphasis supplied)
In the speech he delivered on July 14, 2014, President Aquino III also expressed the view that in applying the
doctrine of operative fact, the Court has already presumed the absence of good faith on the part of the authors,
proponents and implementors of the DAP, so that they would have to prove good faith during trial.46
Hence, in their Motion for Reconsideration, the respondents now urge that the Court should extend the presumption
of good faith in favor of the President and his officials who co-authored, proposed or implemented the DAP.47
The paragraphs 3 and 4 of page 90 of the Decision alluded to by the respondents read:
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does not
always apply, and is not always the consequence of every declaration of constitutional invalidity. It can be invoked
only in situations where the nullification of the effects of what used to be a valid law would result in inequity and
injustice; but where no such result would ensue, the general rule that an unconstitutional law is totally ineffective
should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that can no
longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the
authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by
the proper tribunals determining their criminal, civil, administrative and other liabilities.48 (Bold underscoring is
supplied)
12
The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown out the presumption of good faith
nor imputed bad faith to the authors, proponents and implementors of the DAP. The contrary is true, because the
Court has still presumed their good faith by pointing out that "the doctrine of operative fact xxx cannot apply to the
authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by
the proper tribunals determining their criminal, civil, administrative and other liabilities." Note that the proper
tribunals can make "concrete findings of good faith in their favor" only after a full hearing of all the parties in any
given case, and such a hearing can begin to proceed only after according all the presumptions, particularly that of
good faith, by initially requiring the complainants, plaintiffs or accusers to first establish their complaints or charges
before the respondent authors, proponents and implementors of the DAP.
It is equally important to stress that the ascertainment of good faith, or the lack of it, and the determination of
whether or not due diligence and prudence were exercised, are questions of fact.49 The want of good faith is thus
better determined by tribunals other than this Court, which is not a trier of facts.50
For sure, the Court cannot jettison the presumption of good faith in this or in any other case.1âwphi1 The
presumption is a matter of law. It has had a long history. Indeed, good faith has long been established as a legal
principle even in the heydays of the Roman Empire.51In Soriano v. Marcelo,52 citing Collantes v. Marcelo,53 the
Court emphasizes the necessity of the presumption of good faith, thus:
Well-settled is the rule that good faith is always presumed and the Chapter on Human Relations of the Civil Code
directs every person, inter alia, to observe good faith which springs from the fountain of good conscience.
Specifically, a public officer is presumed to have acted in good faith in the performance of his duties. Mistakes
committed by a public officer are not actionable absent any clear showing that they were motivated by malice or
gross negligence amounting to bad faith. "Bad faith" does not simply connote bad moral judgment or negligence.
There must be some dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a
sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It contemplates a state of mind
affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes.
The law also requires that the public officer’s action caused undue injury to any party, including the government, or
gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. x x x
The Court has further explained in Philippine Agila Satellite, Inc. v. Trinidad-Lichauco: 54
We do not doubt the existence of the presumptions of "good faith" or "regular performance of official duty", yet these
presumptions are disputable and may be contradicted and overcome by other evidence. Many civil actions are
oriented towards overcoming any number of these presumptions, and a cause of action can certainly be geared
towards such effect. The very purpose of trial is to allow a party to present evidence to overcome the disputable
presumptions involved. Otherwise, if trial is deemed irrelevant or unnecessary, owing to the perceived indisputability
of the presumptions, the judicial exercise would be relegated to a mere ascertainment of what presumptions apply in
a given case, nothing more. Consequently, the entire Rules of Court is rendered as excess verbiage, save perhaps
for the provisions laying down the legal presumptions.
Relevantly, the authors, proponents and implementors of the DAP, being public officers, further enjoy the
presumption of regularity in the performance of their functions. This presumption is necessary because they are
clothed with some part of the sovereignty of the State, and because they act in the interest of the public as required
by law.55 However, the presumption may be disputed.56
At any rate, the Court has agreed during its deliberations to extend to the proponents and implementors of the DAP
the benefit of the doctrine of operative fact. This is because they had nothing to do at all with the adoption of the
invalid acts and practices.
7.
The PAPs under the DAP remain effective under the operative fact doctrine
13
As a general rule, the nullification of an unconstitutional law or act carries with it the illegality of its effects. However,
in cases where nullification of the effects will result in inequity and injustice, the operative fact doctrine may
apply.57In so ruling, the Court has essentially recognized the impact on the beneficiaries and the country as a whole
if its ruling would pave the way for the nullification of the ₱144.378 Billions58 worth of infrastructure projects, social
and economic services funded through the DAP. Bearing in mind the disastrous impact of nullifying these projects
by virtue alone of the invalidation of certain acts and practices under the DAP, the Court has upheld the efficacy of
such DAP-funded projects by applying the operative fact doctrine. For this reason, we cannot sustain the Motion for
Partial Reconsideration of the petitioners in G.R. No. 209442.
IN VIEW OF THE FOREGOING, and SUBJECT TO THE FOREGOING CLARIFICATIONS, the Court PARTIALLY
GRANTS the Motion for Reconsideration filed by the respondents, and DENIES the Motion for Partial
Reconsideration filed by the petitioners in G.R. No. 209442 for lack of merit.
ACCORDINGLY, the dispositive portion of the Decision promulgated on July 1, 2014 is hereby MODIFIED as
follows:
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the
following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and
related executive issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987
Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the
withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal
year without complying with the statutory definition of savings contained in the General Appropriations Acts;
and
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices
outside the Executive.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification by the
National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the
conditions provided in the relevant General Appropriations Acts.
SO ORDERED.
LUACAS P. BERSAMIN
Associate Justice
1
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C.
ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA
ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR
BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN
MARRI CAÑETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO,
RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE
CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL
MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK
FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE
MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA
ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY
VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE
INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF
THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED
NATIONS,Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No.
95221(RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline regime of nearby
territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the Philippines
as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous
Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over their "territorial sea,"
the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of
negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for
nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical
errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was
prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of
the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes
the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines 7 and sets the
deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA 9522
shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified
adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands"
whose islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens, taxpayers or x
x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1)
RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine state’s sovereign power, in
violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary
2
treaties,12 and (2) RA 9522 opens the country’s waters landward of the baselines to maritime passage by all vessels
and aircrafts, undermining Philippine sovereignty and national security, contravening the country’s nuclear-free
policy, and damaging marine resources, in violation of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands" not only results in the loss
of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their argument of
territorial diminution, petitioners facially attack RA 9522 for what it excluded and included – its failure to reference
either the Treaty of Paris or Sabah and its use of UNCLOS III’s framework of regime of islands to determine the
maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the petition’s compliance
with the case or controversy requirement for judicial review grounded on petitioners’ alleged lack of locus standi and
(2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits,
respondents defended RA 9522 as the country’s compliance with the terms of UNCLOS III, preserving Philippine
territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the country’s
security, environment and economic interests or relinquish the Philippines’ claim over Sabah.
Respondents also question the normative force, under international law, of petitioners’ assertion that what Spain
ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries
of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily –
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the
writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find
no basis to declare RA 9522 unconstitutional.
On the Threshold Issues Petitioners Possess Locus Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition
alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners’ locus standi as citizens with constitutionally
sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find
other litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition Are Proper Remedies to Test the Constitutionality of Statutes
3
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the
offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse
of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting
prejudice on the part of petitioners.18
Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power
of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial
vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of government.20 Issues of
constitutional import are sometimes crafted out of statutes which, while having no bearing on the personal interests
of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional, RA 9522 is a Statutory Tool to Demarcate the Country’s Maritime Zones
and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it discards the pre-
UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded
in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this
constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over
waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the
United States. Petitioners argue that from the Treaty of Paris’ technical description, Philippine sovereignty over
territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular
area delineated in the Treaty of Paris.22
Petitioners’ theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among
others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines],
contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the
baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify norms regulating the conduct of States in the world’s oceans
and submarine areas, recognizing coastal and archipelagic States’ graduated authority over a limited span of waters
and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific
basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic
starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on
archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and
the continental shelf. – The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision
the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within which States parties exercise treaty-
based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce
customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living
and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77).
Even under petitioners’ theory that the Philippine territory embraces the islands and all the waters within the
rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in
accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The
4
baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of
Paris, but from the "outermost islands and drying reefs of the archipelago."24
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim,
diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory
through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of
sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental
shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on
general international law.26
RA 9522’s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent with the Philippines’ Claim of Sovereignty Over these Areas
Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to draw the baselines, and
to measure the breadth of the applicable maritime zones of the KIG, "weakens our territorial claim" over that
area.27Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion from the Philippine archipelagic baselines
results in the loss of "about 15,000 square nautical miles of territorial waters," prejudicing the livelihood of
subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522
and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its
congressional deliberations, vis-à-vis the Philippines’ obligations under UNCLOS III, belie this view.1avvphi1
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the
basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of
basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s limitation on the maximum
length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of
petitioners’ argument branding RA 9522 as a statutory renunciation of the Philippines’ claim over the KIG, assuming
that baselines are relevant for this purpose.
Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is similarly
unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the
Philippines’ total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by
145,216 square nautical miles, as shown in the table below:29
Extent of maritime
area using RA 3046, Extent of maritime
as amended, taking area using RA 9522,
into account the taking into account
Treaty of Paris’ UNCLOS III (in
delimitation (in square nautical
square nautical miles)
miles)
Internal or
archipelagic
waters 166,858 171,435
Territorial Sea 274,136 32,106
Exclusive
Economic Zone 382,669
TOTAL 440,994 586,210
Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way
beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are
5
overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime
boundaries in accordance with UNCLOS III.30
Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines that RA 9522
draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines’
continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article
121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago,
adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires
that "the length of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the total
number of baselines which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal for several
decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine
archipelago,33 such that any straight baseline loped around them from the nearest basepoint will inevitably "depart
to an appreciable extent from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the
foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough Shoal
are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating
the provision of international law which states: "The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga
islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still
allowed by international law to claim them as our own.
6
This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line
which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough
Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na
sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural
configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits.1avvphi1 The need to shorten
this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as
discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its
maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As
defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06
nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that "The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per
cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum
length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the
baselines system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey
methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on low-water line and drying reefs as prescribed
by Article 47.35
Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’ decision to
classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under the Republic of the Philippines
consistent with Article 121"36 of UNCLOS III manifests the Philippine State’s responsible observance of its pacta
sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land,
surrounded by water, which is above water at high tide," such as portions of the KIG, qualifies under the category of
"regime of islands," whose islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim over Sabah in
North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for
drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is
without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah,
situated in North Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not Incompatible with the Constitution’s Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally "converts"
internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes
passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably
expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.38
7
Whether referred to as Philippine "internal waters" under Article I of the Constitution 39 or as "archipelagic waters"
under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil.
–
1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth
or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect
the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State
of its sovereignty over such waters and their air space, bed and subsoil, and the resources
contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent
discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to
regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now
pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant
innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s limitations and
conditions for their exercise.42 Significantly, the right of innocent passage is a customary international law,43 thus
automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to
absolutely forbid innocent passage that is exercised in accordance with customary international law without risking
retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and
sea lanes passage45 does not place them in lesser footing vis-à-vis continental coastal States which are subject, in
their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The
imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or
distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the
recognition of archipelagic States’ archipelago and the waters enclosed by their baselines as one cohesive entity
prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own
maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’
territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47
Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State
Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative
guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional rights x x x." 49 Article
II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting
executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced
ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the
claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth
8
(Article XII, Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA
9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving
solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime
delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the
maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to
be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime
space – the exclusive economic zone – in waters previously part of the high seas. UNCLOS III grants new rights to
coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles. 53 UNCLOS III,
however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the
territorial sea before UNCLOS III.
RA 9522 and the Philippines’ Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA
9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners’ reading plausible.
Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of
choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic
State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its
maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open
invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas
around our archipelago; and second, it weakens the country’s case in any international dispute over Philippine
maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as
embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines’ maritime
zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its
maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
1
G.R. No. 183591 - THE PROVINCE OF NORTH COTABATO, ET AL. v. THE GOVERNMENT OF THE REPUBLIC
OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), ET AL.
G.R. No. 183752 - CITY GOVERNMENT OF ZAMBOANGA, ET AL. v. THE GOVERNMENT OF THE REPUBLIC
OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), ET AL.
G.R. No. 183893 - THE CITY OF ILIGAN, duly represented by CITY MAYOR LAURENCE LLUCH CRUZ v. THE
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP),
ET AL.
G.R. No. 183951 - THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON.
ROLANDO E. YEBES, ET AL. v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
PANEL ON ANCESTRAL DOMAIN (GRP), ET AL.
x----------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.
x----------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioner-in-
intervention.
x----------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-

AKBAR,petitioner-in-intervention.
x----------------------------------x
THE PROVINCE OF SULTAN KUDARAT, represented by HON. SUHARTO T. MANGUDDATU, in his capacity
as Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in-intervention.
x----------------------------------x
RUY ELIAS LOPEZ, petitioner-in-intervention.
x----------------------------------x
CARLO B. GOMEZ, ET AL., petitioner-in-intervention.
x--------------------------------------------------x
SEPARATE OPINION
CHICO-NAZARIO, J.:
The piece of writing being assailed in these consolidated Petitions is a peace negotiation document, namely
the Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement of
Peace of 2001 (MOA). The Solicitor General explained that this document, prepared by the joint efforts of the
Government of the Republic of the Philippines (GRP) Peace Panel and the Moro Islamic Liberation Front (MILF)
Peace Panel, was merely a codification of consensus points reached between both parties and the aspirations of
the MILF to have a Bangsamoro homeland.1 Subsequently, the Solicitor General moved for the dismissal of the
consolidated cases at bar based on changed circumstances as well as developments which have rendered them
2
moot, particularly the Executive Department's statement that it would no longer sign the questioned peace
negotiation document.2Nonetheless, several parties to the case, as well as other sectors, continue to push for what
they call a "complete determination" of the constitutional issues raised in the present Petitions.
I believe that in light of the pronouncement of the Executive Department to already abandon the MOA, the issue of
its constitutionality has obviously become moot.
The rule is settled that no question involving the constitutionality or validity of a law or governmental act may be
heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: that
the question must be raised by the proper party; that there must be an actual case or controversy; that the question
must be raised at the earliest possible opportunity; and, that the decision on the constitutional or legal question must
be necessary to the determination of the case itself. But the most important are the first two requisites.3
For a court to exercise its power of adjudication, there must be an actual case or controversy — one which involves
a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not
be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of
justice. A case becomes moot and academic when its purpose has become stale.4 An action is considered "moot"
when it no longer presents a justiciable controversy because the issues involved have become academic or
dead or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention
unless the issue is likely to be raised again between the parties. Simply stated, there is nothing for the court to
resolve as the determination thereof has been overtaken by subsequent events.5
Such is the case here.
The MOA has not even been signed, and will never be. Its provisions will not at all come into effect. The MOA will
forever remain a draft that has never been finalized. It is now nothing more than a piece of paper, with no legal force
or binding effect. It cannot be the source of, nor be capable of violating, any right. The instant Petitions, therefore,
and all other oppositions to the MOA, have no more leg to stand on. They no longer present an actual case or a
justiciable controversy for resolution by this Court.
An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite legal claims,
which can be resolved on the basis of existing law and jurisprudence. A justiciable controversy is distinguished from
a hypothetical or abstract difference or dispute, in that the former involves a definite and concrete dispute touching
on the legal relations of parties having adverse legal interests. A justiciable controversy admits of specific relief
through a decree that is conclusive in character, whereas an opinion only advises what the law would be upon a
hypothetical state of facts.6
For the Court to still rule upon the supposed unconstitutionality of the MOA will merely be an academic exercise. It
would, in effect, only be delivering an opinion or advice on what are now hypothetical or abstract violations of
constitutional rights.
In Abbas v. Commission on Elections,7 the 1976 Tripoli Agreement and Republic Act No. 6734 (the Organic Act for
the Autonomous Region in Muslim Mindanao) were challenged for purported violations of the provisions of the
Constitution on freedom of religion. The Court held therein that it should not inquire into the constitutionality of a
peace agreement which was already consummated (the 1976 Tripoli Agreement) and an Organic Act which was
already passed into law (R.A. No. 6734) just because of potential conflicts with the Constitution. Then, with more
reason should this Court desist from ruling on the constitutionality of the MOA which is unsigned, and now entirely
abandoned, and as such, cannot even have any potential conflict with the Constitution.
The Court should not feel constrained to rule on the Petitions at bar just because of the great public interest these
cases have generated. We are, after all, a court of law, and not of public opinion. The power of judicial review of this
Court is for settling real and existent dispute, it is not for allaying fears or addressing public clamor. In acting on
supposed abuses by other branches of government, the Court must be careful that it is not committing abuse itself
by ignoring the fundamental principles of constitutional law.
3
The Executive Department has already manifested to this Court, through the Solicitor General, that it will not sign
the MOA in its present form or in any other form. It has declared the same intent to the public. For this Court to
insist that the issues raised in the instant Petitions cannot be moot for they are still capable of repetition is to totally
ignore the assurance given by the Executive Department that it will not enter into any other form of the MOA in the
future. The Court cannot doubt the sincerity of the Executive Department on this matter. The Court must accord a
co-equal branch of the government nothing less than trust and the presumption of good faith.
Moreover, I deem it beyond the power of this Court to enjoin the Executive Department from entering into
agreements similar to the MOA in the future, as what petitioners and other opponents of the MOA pray for. Such
prayer once again requires this Court to make a definitive ruling on what are mere hypothetical facts. A decree
granting the same, without the Court having seen or considered the actual agreement and its terms, would not only
be premature, but also too general to make at this point. It will perilously tie the hands of the Executive Department
and limit its options in negotiating peace for Mindanao.
Upon the Executive Department falls the indisputably difficult responsibility of diffusing the highly volatile situation in
Mindanao resulting from the continued clashes between the Philippine military and Muslim rebel groups. In
negotiating for peace, the Executive Department should be given enough leeway and should not be prevented from
offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed
upon subject to the amendment of the Constitution by completely legal means.
Peace negotiations are never simple. If neither party in such negotiations thinks outside the box, all they would
arrive at is a constant impasse. Thus, a counsel for one of the intervenors who assert the unconstitutionality of the
MOA8 had no choice but to agree as follows:
ASSOCIATE JUSTICE QUISUMBING: Well, we realize the constitutional constraints of sovereignty, integrity
and the like, but isn't there a time that surely will come and the life of our people when they have to
transcend even these limitations?
DEAN AGABIN: Yes, we have seen it happen in several instances, Your Honor.
xxx
ASSOCIATE JUSTICE QUISUMBING: And in pursuit of that purpose, the Supreme Court cannot look
beyond the horizon and look for more satisfying result?
DEAN AGABIN: Well, if you mean by looking beyond the horizon, it would mean a violation of the provisions
of the Constitution, then it should not be, Your Honor.
ASSOCIATE JUSTICE QUISUMBING: In some part, we have gone to Malaysia. We have gone to the OIC,
and we have even gone to Libya.
DEAN AGABIN: Yes, Your Honor. But in all these, we have always insisted on preserving the territorial
integrity of the country.
ASSOCIATE JUSTICE QUISUMBING: And this dicta or [dogma] is unassailable forever. There cannot be an
exception.
DEAN AGABIN: It is unassailable under the present Constitution, Your Honor.
ASSOCIATE JUSTICE QUISUMBING: But, at least, you can also agree that the Constitution ought to be
changed in order for a country to fulfill its internal obligation as a matter of necessity.
DEAN AGABIN: Yes, if the people so will it, your Honor.
ASSOCIATE JUSTICE QUISUMBING: You remember how the emperor of Japan lost his divinity? They just
changed their Constitution, isn't it?
DEAN AGABIN: Yes, it was enforced upon him by Mr. McArthur, and they have no choice.
4
ASSOCIATE JUSTICE QUISUMBING: Isn't that a very good example of thinking outside the box? That one
day even those who are underground may have to think. But frankly now Dean, before I end, may I ask, is it
possible to meld or modify our Constitutional Order in order to have some room for the newly developing
international notions on Associative Governance Regulation Movement and Human Rights?
DEAN AGABIN: Yes. It is possible, Your Honor, with the consent of the people.
ASSOCIATE JUSTICE QUISUMBING: And, therefore, we vote it to a referendum or any consultation
beforehand?
DEAN AGABIN: If there is such a proposal for or amendment or revision of the Constitution, yes, Your
Honor.
ASSOCIATE JUSTICE QUISUMBING: So, either initiative or CHA-CHA or CON-AS?
DEAN AGABIN: Yes, Your Honor.9
It must be noted that the Constitution has been in force for three decades now, yet, peace in Mindanao still
remained to be elusive under its present terms. There is the possibility that the solution to the peace problem in the
Southern Philippines lies beyond the present Constitution. Exploring this possibility and considering the necessary
amendment of the Constitution are not per se unconstitutional. The Constitution itself implicitly allows for its own
amendment by describing, under Article XVII, the means and requirements therefor. In Tan v. Macapagal,10 where
petitioners claim that the Constitutional Convention was without power to consider, discuss, or adopt proposals
which seek to revise the Constitution through the adoption of a form of government other than the form outlined in
the then governing Constitution, the Court ruled that:
[A]s long as any proposed amendment is still unacted on by [the Convention], there is no room for the
interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification
may the appropriate case be instituted. Until then, the Courts are devoid of jurisdiction. x x x.
At this point, there is far from a concrete proposed amendment to the Constitution which the Court can take
cognizance of, much less render a pronouncement upon.
At most, the Court can only exhort the Executive Department to keep in mind that it must negotiate and secure
peace in Mindanao under terms which are most beneficial for the country as a whole, and not just one group of
Muslim insurgents. Transparency and consultation with all major players, which necessarily include affected local
government units and their constituents, are essential to arrive at a more viable and acceptable peace plan. The
nature and extent of any future written agreements should be clearly established from the very beginning, and the
terms thereof carefully drafted and clearly worded, to avoid misunderstandings or misconstructions by the parties
and the public. If a document is meant to be a list of consensus points still subject to further negotiations, then it
should just simply state so.
As a final note, I find it necessary to stress that the Court must not allow itself to be mired in controversies affecting
each step of the peace process in Mindanao. It is not within the province or even the competence of the Judiciary to
tell the Executive Department exactly what and what not, how and how not, to negotiate for peace with insurgents.
Given this kind of situation where war and peace hang in the balance, where people's lives are at stake, and the
Executive Department, under its residual powers, is tasked to make political decisions in order to find solutions to
the insurgency problem, the Court should respect the political nature of the issues at bar and exercise judicial
restraint until an actual controversy is brought before it.
In view of the foregoing, I vote for the GRANT of the Motion to Dismiss filed by the Solicitor General and,
accordingly, for the DISMISSAL of the Petitions at bar for being MOOT and ACADEMIC.
MINITA V. CHICO-NAZARIO
Associate Justice
5
1
March 18, 2015
G.R. No. 199113
RENATO M. DAVID, Petitioner,

vs.
EDITHA A. AGBAY and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
VILLARAMA, JR., J.:
This is a petition for review under Rule 45 seeking to reverse the Order1 dated October 8, 2011 of the Regional Trial
Court (RTC) of Pinamalayan, Oriental Mindoro, which denied the petition for certiorari filed by Renato(petitioner)M.
David. Petitioner assailed the Order2 dated March 22, 2011 of the Municipal Trial Court (MTC) of Socorro, Oriental
Mindoro denying his motion for redetermination of probable cause.
The factual antecedents:
In 1974, petitioner migrated to Canada where he became a Canadian citizen by naturalization. Upon their
retirement, petitioner and his wife returned to the Philippines. Sometime in 2000, they purchased a 600-square
meter lot along the beach in Tambong, Gloria, Oriental Mindoro where they constructed a residential house.
However, in the year 2004, they came to know that the portion where they built their house is public land and part of
the salvage zone.
On April 12, 2007, petitioner filed a Miscellaneous Lease Application3 (MLA) over the subject land with the
Department of Environment and Natural Resources (DENR) at the Community Environment and Natural Resources
Office (CENRO) in Socorro. In the said application, petitioner indicated that he is a Filipino citizen.
Private respondent Editha A. Agbay opposed the application on the ground that petitioner, a Canadian citizen, is
disqualified to own land. She also filed a criminal complaint for falsification of public documents under Article 172 of
the Revised Penal Code (RPC) (I.S. No. 08-6463) against the petitioner.
Meanwhile, petitioner re-acquired his Filipino citizenship under the provisions of Republic Act No. 9225,4 (R.A. 9225)
as evidenced by Identification Certificate No. 266-10-075 issued by the Consulate General of the Philippines
(Toronto) on October 11, 2007.
In his defense, petitioner averred that at the time he filed his application, he had intended to re-acquire Philippine
citizenship and that he had been assured by a CENRO officer that he could declare himself as a Filipino. He further
alleged that he bought the property from the Agbays who misrepresented to him that the subject property was titled
land and they have the right and authority to convey the same. The dispute had in fact led to the institution of civil
and criminal suits between him and private respondent’s family.
On January 8, 2008,6 the Office of the Provincial Prosecutor issued its Resolution7 finding probable cause to indict
petitioner for violation of Article 172 of the RPC and recommending the filing of the corresponding information in
court. Petitioner challenged the said resolution in a petition for review he filed before the Department of Justice
(DOJ).
On June 3, 2008, the CENRO issued an order rejecting petitioner’s MLA. It ruled that petitioner’s subsequent re-
acquisition of Philippine citizenship did not cure the defect in his MLA which was void ab initio.8
In the meantime, on July 26, 2010, the petition for review filed by petitioner was denied by the DOJ which held that
the presence of the elements of the crime of falsification of public document suffices to warrant indictment of the
petitioner notwithstanding the absence of any proof that he gained or intended to injure a third person in committing
2
the act of falsification.9 Consequently, an information for Falsification of Public Document was filed before the MTC
(Criminal Case No. 2012) and a warrant of arrest was issued against the petitioner.
On February 11, 2011, after the filing of the Information and before his arrest, petitioner filed an Urgent Motion for
Re-Determination of Probable Cause10 in the MTC. Interpreting the provisions of the law relied upon by petitioner,
the said court denied the motion, holding that R.A. 9225 makes a distinction between those who became foreign
citizens during its effectivity, and those who lost their Philippine citizenship before its enactment when the governing
law was Commonwealth Act No. 6311 (CA 63). Since the crime for which petitioner was charged was alleged and
admitted to have been committed on April 12, 2007 before he had reacquired his Philippine citizenship, the MTC
concluded that petitioner was at that time still a Canadian citizen. Thus, the MTC ordered:
WHEREFORE, for lack of jurisdiction over the person of the accused, and for lack of merit, the motion is DENIED.
SO ORDERED.12
In his motion for reconsideration,13 petitioner questioned the foregoing order denying him relief on the ground of lack
of jurisdiction and insisted that the issue raised is purely legal. He argued that since his application had yet to
receive final evaluation and action by the DENR Region IV-B office in Manila, it is academic to ask the citizenship of
the applicant (petitioner) who had re-acquired Philippine citizenship six months after he applied for lease of public
land. The MTC denied the motion for reconsideration.14
Dissatisfied, petitioner elevated the case to the RTC via a petition15 for certiorari under Rule 65, alleging grave
abuse of discretion on the part of the MTC. He asserted that first, jurisdiction over the person of an accused cannot
be a pre-condition for the re-determination of probable cause by the court that issues a warrant of arrest;
and second, the March 22, 2011 Order disregarded the legal fiction that once a natural-born Filipino citizen who had
been naturalized in another country re-acquires his citizenship under R.A. 9225, his Filipino citizenship is thus
deemed not to have been lost on account of said naturalization.
In his Comment and Opposition,16 the prosecutor emphasized that the act of falsification was already consummated
as petitioner has not yet re-acquired his Philippine citizenship, and his subsequent oath to re-acquire Philippine
citizenship will only affect his citizenship status and not his criminal act which was long consummated prior to said
oath of allegiance.
On October 8, 2011, the RTC issued the assailed Order denying the petition for certiorari after finding no grave
abuse of discretion committed by the lower court, thus:
ACCORDINGLY, the petition is hereby DENIED. At any rate petitioner is not left without any remedy or recourse
because he can proceed to trial where he can make use of his claim to be a Filipino citizen as his defense to be
adjudicated in a full blown trial, and in case of conviction, to appeal such conviction. SO ORDERED.17
Petitioner is now before us arguing that –
A. By supporting the prosecution of the petitioner for falsification, the lower court has disregarded the
undisputed fact that petitioner is a natural-born Filipino citizen, and that by re-acquiring the same status
under R.A. No. 9225 he was by legal fiction "deemed not to have lost" it at the time of his naturalization in
Canada and through the time when he was said to have falsely claimed Philippine citizenship.
B. By compelling petitioner to first return from his legal residence in Canada and to surrender or allow
himself to be arrested under a warrant for his alleged false claim to Philippine citizenship, the lower court
has pre-empted the right of petitioner through his wife and counsel to question the validity of the said
warrant of arrest against him before the same is implemented, which is tantamount to a denial of due
process.18
In his Comment, the Solicitor General contends that petitioner’s argument regarding the retroactivity of R.A. 9225 is
without merit.1âwphi1 It is contended that this Court’s rulings in Frivaldo v. Commission on Elections19 and Altarejos
v. Commission on Elections20 on the retroactivity of one’s reacquisition of Philippine citizenship to the date of filing
3
his application therefor cannot be applied to the case of herein petitioner. Even assuming for the sake of argument
that such doctrine applies in the present situation, it will still not work for petitioner’s cause for the simple reason that
he had not alleged, much less proved, that he had already applied for reacquisition of Philippine citizenship before
he made the declaration in the Public Land Application that he is a Filipino. Moreover, it is stressed that in
falsification of public document, it is not necessary that the idea of gain or intent to injure a third person be present.
As to petitioner’s defense of good faith, such remains to be a defense which may be properly raised and proved in a
full- blown trial.
On the issue of jurisdiction over the person of accused (petitioner), the Solicitor General opines that in seeking an
affirmative relief from the MTC when he filed his Urgent Motion for Re-determination of Probable Cause, petitioner is
deemed to have submitted his person to the said court’s jurisdiction by his voluntary appearance. Nonetheless, the
RTC correctly ruled that the lower court committed no grave abuse of discretion in denying the petitioner’s motion
after a judicious, thorough and personal evaluation of the parties’ arguments contained in their respective pleadings,
and the evidence submitted before the court.
In sum, the Court is asked to resolve whether (1) petitioner may be indicted for falsification for representing himself
as a Filipino in his Public Land Application despite his subsequent re-acquisition of Philippine citizenship under the
provisions of R.A. 9225; and (2) the MTC properly denied petitioner’s motion for re-determination of probable cause
on the ground of lack of jurisdiction over the person of the accused (petitioner).
R.A. 9225, otherwise known as the "Citizenship Retention and Re- acquisition Act of 2003," was signed into law by
President Gloria Macapagal-Arroyo on August 29, 2003. Sections 2 and 3 of said law read:
SEC. 2. Declaration of Policy.–It is hereby declared the policy of the State that all Philippine citizens who become
citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions
of this Act.
SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the contrary notwithstanding, natural-born
citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a
foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath of
allegiance to the Republic:
"I ______________________, solemnly swear (or affirm) that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the
Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental
reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the aforesaid oath. (Emphasis supplied)
While Section 2 declares the general policy that Filipinos who have become citizens of another country shall be
deemed "not to have lost their Philippine citizenship," such is qualified by the phrase "under the conditions of this
Act." Section 3 lays down such conditions for two categories of natural-born Filipinos referred to in the first and
second paragraphs. Under the first paragraph are those natural-born Filipinos who have lost their citizenship by
naturalization in a foreign country who shall re-acquire their Philippine citizenship upon taking the oath of allegiance
to the Republic of the Philippines. The second paragraph covers those natural-born Filipinos who became foreign
citizens after R.A. 9225 took effect, who shall retain their Philippine citizenship upon taking the same oath. The
taking of oath of allegiance is required for both categories of natural-born Filipino citizens who became citizens of a
foreign country, but the terminology used is different, "re-acquired" for the first group, and "retain" for the second
group.
The law thus makes a distinction between those natural-born Filipinos who became foreign citizens before and after
the effectivity of R.A. 9225. Although the heading of Section 3 is "Retention of Philippine Citizenship", the authors of
the law intentionally employed the terms "re-acquire" and "retain" to describe the legal effect of taking the oath of
4
allegiance to the Republic of the Philippines. This is also evident from the title of the law using both re-acquisition
and retention.
In fine, for those who were naturalized in a foreign country, they shall be deemed to have re-acquired their
Philippine citizenship which was lost pursuant to CA 63, under which naturalization in a foreign country is one of the
ways by which Philippine citizenship may be lost. As its title declares, R.A. 9225 amends CA 63 by doing away with
the provision in the old law which takes away Philippine citizenship from natural-born Filipinos who become
naturalized citizens of other countries and allowing dual citizenship,21 and also provides for the procedure for re-
acquiring and retaining Philippine citizenship. In the case of those who became foreign citizens after R.A. 9225 took
effect, they shall retain Philippine citizenship despite having acquired foreign citizenship provided they took the oath
of allegiance under the new law.
Petitioner insists we should not distinguish between re-acquisition and retention in R.A. 9225. He asserts that in
criminal cases, that interpretation of the law which favors the accused is preferred because it is consistent with the
constitutional presumption of innocence, and in this case it becomes more relevant when a seemingly difficult
question of law is expected to have been understood by the accused, who is a non-lawyer, at the time of the
commission of the alleged offense. He further cites the letter-reply dated January 31, 201122 of the Bureau of
Immigration (BI) to his query, stating that his status as a natural-born Filipino will be governed by Section 2 of R.A.
9225.
These contentions have no merit.
That the law distinguishes between re-acquisition and retention of Philippine citizenship was made clear in the
discussion of the Bicameral Conference Committee on the Disagreeing Provisions of House Bill No. 4720 and
Senate Bill No. 2130 held on August 18, 2003, where Senator Franklin Drilon was responding to the query of
Representative Exequiel Javier:
REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of the Senate version, "Any provision of
law on the contrary notwithstanding, natural-born citizens of the Philippines who, after the effectivity of this Act,
shall… and so forth, ano, shall retain their Philippine citizenship.
Now in the second paragraph, natural-born citizens who have lost their citizenship by reason of their naturalization
after the effectivity of this Act are deemed to have reacquired…
THE CHAIRMAN (SEN. DRILON). Prior to the effectivity.
REP. JAVIER. Well, you have two kinds of natural-born citizens here. Natural-born citizens who acquired foreign
citizenship after the effectivity of this act are considered to have retained their citizenship. But natural-born citizens
who lost their Filipino citizenship before the effectivity of this act are considered to have reacquired. May I know the
distinction? Do you mean to say that natural-born citizens who became, let’s say, American citizens after the
effectivity of this act are considered natural-born?
Now in the second paragraph are the natural-born citizens who lost their citizenship before the effectivity of this act
are no longer natural born citizens because they have just reacquired their citizenship. I just want to know this
distinction, Mr. Chairman.
THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely retention and reacquisition. The
reacquisition will apply to those who lost their Philippine citizenship by virtue of Commonwealth Act
63.Upon the effectivity -- assuming that we can agree on this, upon the effectivity of this new measure amending
Commonwealth Act 63, the Filipinos who lost their citizenship is deemed to have reacquired their Philippine
citizenship upon the effectivity of the act.
The second aspect is the retention of Philippine citizenship applying to future instances. So that’s the
distinction.
5
REP. JAVIER. Well, I’m just asking this question because we are here making distinctions between natural-born
citizens. Because this is very important for certain government positions, ‘no, because natural-born citizens are only
qualified for a specific…
THE CHAIRMAN (SEN. DRILON). That is correct.
REP. JAVIER. ...positions under the Constitution and under the law.
THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. It’s one of the provisions, yes. But just for
purposes of the explanation, Congressman Javier, that is our conceptualization. Reacquired for those who
previously lost [Filipino citizenship] by virtue of Commonwealth Act 63, and retention for those in the
future. (Emphasis supplied)
Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of R.A. 9225, he belongs to
the first category of natural- born Filipinos under the first paragraph of Section 3 who lost Philippine citizenship by
naturalization in a foreign country. As the new law allows dual citizenship, he was able to re-acquire his Philippine
citizenship by taking the required oath of allegiance.
For the purpose of determining the citizenship of petitioner at the time of filing his MLA, it is not necessary to discuss
the rulings in Frivaldo and Altarejos on the retroactivity of such reacquisition because R.A. 9225 itself treats those of
his category as having already lost Philippine citizenship, in contradistinction to those natural-born Filipinos who
became foreign citizens after R.A. 9225 came into force. In other words, Section 2 declaring the policy that
considers Filipinos who became foreign citizens as not to have lost their Philippine citizenship, should be read
together with Section 3, the second paragraph of which clarifies that such policy governs all cases after the new
law’s effectivity.
As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without any reference to Section 3 on the
particular application of reacquisition and retention to Filipinos who became foreign citizens before and after the
effectivity of R.A. 9225.
Petitioner’s plea to adopt the interpretation most favorable to the accused is likewise misplaced. Courts adopt an
interpretation more favorable to the accused following the time-honored principle that penal statutes are construed
strictly against the State and liberally in favor of the accused.23 R.A. 9225, however, is not a penal law.
Falsification of documents under paragraph 1, Article 17224 in relation to Article 17125 of the RPC refers to
falsification by a private individual, or a public officer or employee who did not take advantage of his official position,
of public, private, or commercial documents. The elements of falsification of documents under paragraph 1, Article
172 of the RPC are:
(1)that the offender is a private individual or a public officer or employee who did not take advantage of his
official position;
(2)that he committed any of the acts of falsification enumerated in Article 171 of the RPC; and
(3)that the falsification was committed in a public, official or commercial document.26
Petitioner made the untruthful statement in the MLA, a public document, that he is a Filipino citizen at the time of the
filing of said application, when in fact he was then still a Canadian citizen. Under CA 63, the governing law at the
time he was naturalized as Canadian citizen, naturalization in a foreign country was among those ways by which a
natural-born citizen loses his Philippine citizenship. While he re-acquired Philippine citizenship under R.A. 9225 six
months later, the falsification was already a consummated act, the said law having no retroactive effect insofar as
his dual citizenship status is concerned. The MTC therefore did not err in finding probable cause for falsification of
public document under Article 172, paragraph 1.
The MTC further cited lack of jurisdiction over the person of petitioner accused as ground for denying petitioner’s
motion for re- determination of probable cause, as the motion was filed prior to his arrest. However, custody of the
law is not required for the adjudication of reliefs other than an application for bail. 27 In Miranda v. Tuliao,28 which
6
involved a motion to quash warrant of arrest, this Court discussed the distinction between custody of the law and
jurisdiction over the person, and held that jurisdiction over the person of the accused is deemed waived when he
files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court
by impugning such jurisdiction over his person. Thus:
In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing of the above
Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D. Regalado, in Santiago v. Vasquez:
The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished
either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of
the court’s jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On the matter of bail,
since the same is intended to obtain the provisional liberty of the accused, as a rule the same cannot be posted
before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary
surrender.
Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the person.
Custody of the law is required before the court can act upon the application for bail, but is not required for the
adjudication of other reliefs sought by the defendant where the mere application therefor constitutes a waiver of the
defense of lack of jurisdiction over the person of the accused. Custody of the law is accomplished either by arrest or
voluntary surrender, while jurisdiction over the person of the accused is acquired upon his arrest or voluntary
appearance. One can be under the custody of the law but not yet subject to the jurisdiction of the court over his
person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the
warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the
custody of the law, such as when an accused escapes custody after his trial has commenced. Being in the custody
of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to
become obedient to the will of the law. Custody of the law is literally custody over the body of the accused. It
includes, but is not limited to, detention.
xxxx
While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a general rule,
one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. As we held
in the aforecited case of Santiago, seeking an affirmative relief in court, whether in civil or criminal
proceedings, constitutes voluntary appearance.
xxxx
To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the accused is
deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases
when he invokes the special jurisdiction of the court by impugning such jurisdiction over his
person.Therefore, in narrow cases involving special appearances, an accused can invoke the processes of the
court even though there is neither jurisdiction over the person nor custody of the law. However, if a person invoking
the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the
law.29 (Emphasis supplied)
Considering that petitioner sought affirmative relief in filing his motion for re-determination of probable cause, the
MTC clearly erred in stating that it lacked jurisdiction over his person. Notwithstanding such erroneous ground
stated in the MTC's order, the RTC correctly ruled that no grave abuse of discretion was committed by the MTC in
denying the said motion for lack of merit.
WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of the Regional Trial Court of
Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-11 (Criminal Case No. 2012) is hereby AFFIRMED and
UPHELD.
With costs against the petitioner. SO ORDERED.
MARTIN S. VILLARAMA, JR.

Associate Justice
1
March 8, 2016
G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court with
extremely urgent application for an ex parte issuance of temporary restraining order/status quo ante order and/or
writ of preliminary injunction assailing the following: (1) 1 December 2015 Resolution of the Commission on
Elections (COMELEC) Second Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No.
15-001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and ( 4) 23 December 2015
Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC)
for having been issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the Parish
Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care and custody over
petitioner was passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6
September 1968, Emiliano reported and registered petitioner as a foundling with the Office of the Civil Registrar of
Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of Live Birth, the petitioner was given the name
"Mary Grace Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and
Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court (MTC) of
San Juan City. On 13 May 1974, the trial court granted their petition and ordered that petitioner's name be changed
from "Mary Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations
were made by OCR-Iloilo on petitioner's foundling certificate reflecting the court decreed adoption,2 the petitioner's
adoptive mother discovered only sometime in the second half of 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's new name and the
name of her adoptive parents. 3 Without delay, petitioner's mother executed an affidavit attesting to the lawyer's
omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in
the name of Mary Grace Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local COMELEC
Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's Identification Card for Precinct
No. 196 in Greenhills, San Juan, Metro Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 6 by the Department of
Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her Philippine passport and
respectively secured Philippine Passport Nos. L881511 and DD156616.7
Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the Philippines 8 but
she opted to continue her studies abroad and left for the United States of America (U.S.) in 1988. Petitioner
graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts
degree in Political Studies.9
2
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both the
Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of being with her husband
who was then based in the U.S., the couple flew back to the U.S. two days after the wedding ceremony or on 29
July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992. 12 Her two
daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998
and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S. Passport No.
017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's candidacy
for President in the May 2004 elections. It was during this time that she gave birth to her youngest daughter Anika.
She returned to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon learning of her
father's deteriorating medical condition. 17 Her father slipped into a coma and eventually expired. The petitioner
stayed in the country until 3 February 2005 to take care of her father's funeral arrangements as well as to assist in
the settlement of his estate.18
According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her earnest
desire to be with her grieving mother, the petitioner and her husband decided to move and reside permanently in the
Philippines sometime in the first quarter of 2005.19 The couple began preparing for their resettlement including
notification of their children's schools that they will be transferring to Philippine schools for the next
semester;20coordination with property movers for the relocation of their household goods, furniture and cars from the
U.S. to the Philippines;21 and inquiry with Philippine authorities as to the proper procedure to be followed in bringing
their pet dog into the country.22 As early as 2004, the petitioner already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 200524 and without delay, secured a Tax Identification
Number from the Bureau of Internal Revenue. Her three (3) children immediately followed25 while her husband was
forced to stay in the U.S. to complete pending projects as well as to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a
condominium unit with a parking slot at One Wilson Place Condominium in San Juan City in the second half of
2005.27 The corresponding Condominium Certificates of Title covering the unit and parking slot were issued by the
Register of Deeds of San Juan City to petitioner and her husband on 20 February 2006. 28 Meanwhile, her children of
school age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the family's
remaining household belongings.29 She travelled back to the Philippines on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change and
abandonment of their address in the U.S.31 The family home was eventually sold on 27 April 2006.32 Petitioner's
husband resigned from his job in the U.S. in April 2006, arrived in the country on 4 May 2006 and started working for
a major Philippine company in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City where
they built their family home34 and to this day, is where the couple and their children have been residing.35 A Transfer
Certificate of Title covering said property was issued in the couple's name by the Register of Deeds of Quezon City
on 1 June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act
(R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.36 Under the same Act, she filed with the
Bureau of Immigration (BI) a sworn petition to reacquire Philippine citizenship together with petitions for derivative
citizenship on behalf of her three minor children on 10 July 2006.37 As can be gathered from its 18 July 2006 Order,
the BI acted favorably on petitioner's petitions and declared that she is deemed to have reacquired her Philippine
3
citizenship while her children are considered as citizens of the Philippines. 38 Consequently, the BI issued
Identification Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.40 She also
secured from the DFA a new Philippine Passport bearing the No. XX4731999.41 This passport was renewed on 18
March 2014 and she was issued Philippine Passport No. EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and
Television Review and Classification Board (MTRCB).43 Before assuming her post, petitioner executed an "Affidavit
of Renunciation of Allegiance to the United States of America and Renunciation of American Citizenship" before a
notary public in Pasig City on 20 October 2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No.
9225.45 The following day, 21 October 2010 petitioner submitted the said affidavit to the BI46 and took her oath of
office as Chairperson of the MTRCB.47 From then on, petitioner stopped using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an "Oath/Affirmation
of Renunciation of Nationality of the United States."49 On that day, she accomplished a sworn questionnaire before
the U.S. Vice Consul wherein she stated that she had taken her oath as MTRCB Chairperson on 21 October 2010
with the intent, among others, of relinquishing her American citizenship.50 In the same questionnaire, the petitioner
stated that she had resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July
1991 and from May 2005 to present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United
States" effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for the
2013 Elections wherein she answered "6 years and 6 months" to the question "Period of residence in the Philippines
before May 13, 2013."53 Petitioner obtained the highest number of votes and was proclaimed Senator on 16 May
2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her COC, the
petitioner declared that she is a natural-born citizen and that her residence in the Philippines up to the day before 9
May 2016 would be ten (10) years and eleven (11) months counted from 24 May 2005.57 The petitioner attached to
her COC an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary public
in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC cases
against her which were the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due course
or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second
Division.59She is convinced that the COMELEC has jurisdiction over her petition.60 Essentially, Elamparo's contention
is that petitioner committed material misrepresentation when she stated in her COC that she is a natural-born
Filipino citizen and that she is a resident of the Philippines for at least ten (10) years and eleven (11) months up to
the day before the 9 May 2016 Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino on
account of the fact that she was a foundling.62 Elamparo claimed that international law does not confer natural-born
status and Filipino citizenship on foundlings.63 Following this line of reasoning, petitioner is not qualified to apply for
reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to begin
with.64Even assuming arguendo that petitioner was a natural-born Filipino, she is deemed to have lost that status
when she became a naturalized American citizen.65 According to Elamparo, natural-born citizenship must be
continuous from birth.66
4
On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn declaration she
made in her 2012 COC for Senator wherein she indicated that she had resided in the country for only six ( 6) years
and six ( 6) months as of May 2013 Elections. Elamparo likewise insisted that assuming arguendo that petitioner is
qualified to regain her natural-born status under R.A. No. 9225, she still fell short of the ten-year residency
requirement of the Constitution as her residence could only be counted at the earliest from July 2006, when she
reacquired Philippine citizenship under the said Act. Also on the assumption that petitioner is qualified to reacquire
lost Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo
warranto which could only be filed if Grace Poe wins in the Presidential elections, and that the Department
of Justice (DOJ) has primary jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain allegations which, if hypothetically
admitted, would make false the statement in her COC that she is a natural-born Filipino citizen nor was there
any allegation that there was a willful or deliberate intent to misrepresent on her part;
(3) she did not make any material misrepresentation in the COC regarding her citizenship and residency
qualifications for:
a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens;
b. foundlings are presumed under international law to have been born of citizens of the place where
they are found;
c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;
d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for
President in the May 9, 2016 Elections and that the same is in full force and effect and has not been
withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-born status;
f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as
early as May 24, 2005;
g. she could reestablish residence even before she reacquired natural-born citizenship under R.A.
No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake,
not binding and should give way to evidence on her true date of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide
a purely political question, that is, should she serve as the country's next leader.68
After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's COC, filed
for the purpose of running for the President of the Republic of the Philippines in the 9 May 2016 National and Local
Elections, contained material representations which are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or Cancel
Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for President of the
Republic of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary Grace
Natividad Sonora Poe Llamanzares is hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the COMELEC En
Banc resolved in its 23 December 2015 Resolution by denying the same.70
5
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P. Contreras
(Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were consolidated and
raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, 71 docketed as SPA No.
15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify her for the
Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown parentage,
particularly foundlings, cannot be considered natural-born Filipino citizens since blood relationship is determinative
of natural-born status.73 Tatad invoked the rule of statutory construction that what is not included is excluded. He
averred that the fact that foundlings were not expressly included in the categories of citizens in the 193 5
Constitution is indicative of the framers' intent to exclude them.74 Therefore, the burden lies on petitioner to prove
that she is a natural-born citizen.75
Neither can petitioner seek refuge under international conventions or treaties to support her claim that foundlings
have a nationality.76 According to Tatad, international conventions and treaties are not self-executory and that local
legislations are necessary in order to give effect to treaty obligations assumed by the Philippines.77 He also stressed
that there is no standard state practice that automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire Philippine
citizenship under R.A. No. 9225 because it only applies to former natural-born citizens and petitioner was not as she
was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year residency
requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only from the time she renounced
her American citizenship which was sometime in 2010 or 2011.81 Additionally, Tatad questioned petitioner's lack of
intention to abandon her U.S. domicile as evinced by the fact that her husband stayed thereat and her frequent trips
to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139 (DC),
Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of a natural-born
citizen.83 He advanced the view that former natural-born citizens who are repatriated under the said Act reacquires
only their Philippine citizenship and will not revert to their original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator that she had only been a resident of the
Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections operates against her.
Valdez rejected petitioner's claim that she could have validly reestablished her domicile in the Philippines prior to
her reacquisition of Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10) year
residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, 85 docketed as SPA No. 15-007
(DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for President should be
cancelled on the ground that she did not possess the ten-year period of residency required for said candidacy and
that she made false entry in her COC when she stated that she is a legal resident of the Philippines for ten (10)
years and eleven (11) months by 9 May 2016.86 Contreras contended that the reckoning period for computing
petitioner's residency in the Philippines should be from 18 July 2006, the date when her petition to reacquire
Philippine citizenship was approved by the BI.87 He asserted that petitioner's physical presence in the country before
18 July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she was then living here as
an American citizen and as such, she was governed by the Philippine immigration laws.88
In her defense, petitioner raised the following arguments:

6
First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not invoke
grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the Omnibus Election
Code.89 Instead, Tatad completely relied on the alleged lack of residency and natural-born status of petitioner which
are not among the recognized grounds for the disqualification of a candidate to an elective office.90
Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing her
ineligibility for the Presidency.91 A petition for quo warranto falls within the exclusive jurisdiction of the Presidential
Electoral Tribunal (PET) and not the COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents.93 Otherwise stated,
she has a presumption in her favor that she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed to be
citizens of the country where they are found.94 Consequently, the petitioner is considered as a natural-born citizen of
the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225 or the
right to reacquire her natural-born status.96 Moreover, the official acts of the Philippine Government enjoy the
presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the BI declaring her as natural-born
citizen, her appointment as MTRCB Chair and the issuance of the decree of adoption of San Juan RTC. 97 She
believed that all these acts reinforced her position that she is a natural-born citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of choice in
the Philippines as demonstrated by her children's resettlement and schooling in the country, purchase of a
condominium unit in San Juan City and the construction of their family home in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even before she
renounced her American citizenship as long as the three determinants for a change of domicile are complied
with.100She reasoned out that there was no requirement that renunciation of foreign citizenship is a prerequisite for
the acquisition of a new domicile of choice.101
Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a mistake
made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is not a
natural-born citizen, that she failed to complete the ten (10) year residency requirement, and that she committed
material misrepresentation in her COC when she declared therein that she has been a resident of the Philippines for
a period of ten (10) years and eleven (11) months as of the day of the elections on 9 May 2016. The COMELEC
First Division concluded that she is not qualified for the elective position of President of the Republic of the
Philippines. The dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with the 9
May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution. On 23
December 2015, the COMELEC En Banc issued a Resolution denying petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari with urgent
prayer for the issuance of an ex parte temporary restraining order/status quo ante order and/or writ of preliminary
injunction. On 28 December 2015, temporary restraining orders were issued by the Court enjoining the COMELEC
and its representatives from implementing the assailed COMELEC Resolutions until further orders from the Court.
The Court also ordered the consolidation of the two petitions filed by petitioner in its Resolution of 12 January 2016.
Thereafter, oral arguments were held in these cases.
7
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases SPA
No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v.
Mary Grace Natividad Sonora Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015
Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015
Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave abuse
of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the 9 May
2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or cancelled
"on the exclusive ground" that she made in the certificate a false material representation. The exclusivity of the
ground should hedge in the discretion of the COMELEC and restrain it from going into the issue of the qualifications
of the candidate for the position, if, as in this case, such issue is yet undecided or undetermined by the proper
authority. The COMELEC cannot itself, in the same cancellation case, decide the qualification or lack thereof of the
candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective municipal
and barangay offices shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities
of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of
ensuring free, orderly, honest, peaceful, and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in
addition to other requirements, must present their platform or program of government; and accredit
citizens' arms of the Commission on Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to
8
uphold and adhere to this Constitution, or which are supported by any foreign government shall
likewise be refused registration.
Financial contributions from foreign governments and their agencies to political parties,
organizations, coalitions, or candidates related to elections constitute interference in national affairs,
and, when accepted, shall be an additional ground for the cancellation of their registration with the
Commission, in addition to other penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its
directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section 17 of the
same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns, and qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the
House of Representatives, as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations registered under the party-list
system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns,
and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-President,
Senators and the Members of the House of Representatives was made clear by the Constitution. There is no such
provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections,104 which was
affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is our guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the following:
Grounds for disqualification. - Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from continuing as a candidate.
9
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such
an act is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the
exercise of its rule-making power under Art. IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the
Constitution withholds from the COMELEC even the power to decide cases involving the right to vote, which
essentially involves an inquiry into qualifications based on age, residence and citizenship of voters. [Art. IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds specified in § 12 and §68 of the Omnibus Election Code and
in §40 of the Local Government Code and are for the purpose of barring an individual from becoming a candidate or
from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the
race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this
sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in §2 of
the Law does not imply that he does not suffer from any of [the] disqualifications provided in §4.
Before we get derailed by the distinction as to grounds and the consequences of the respective proceedings, the
importance of the opinion is in its statement that "the lack of provision for declaring the ineligibility of candidates,
however, cannot be supplied by a mere rule". Justice Mendoza lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the
qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his
eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting
election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which
should be determined lest he wins because of the very acts for which his disqualification is being sought. That is
why it is provided that if the grounds for disqualification are established, a candidate will not be voted for; if he has
been voted for, the votes in his favor will not be counted; and if for some reason he has been voted for and he has
won, either he will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case, his
domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination
of Aquino's residence was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to
the summary character proceedings relating to certificates of candidacy. That is why the law makes the receipt of
certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state
in their certificates of candidacy that they are eligible for the position which they seek to fill, leaving the
determination of their qualifications to be made after the election and only in the event they are elected. Only in
cases involving charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice
President, Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to
preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole
judges" under the Constitution of the election, returns and qualifications of members of Congress of the President
and Vice President, as the case may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the amendment
through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993 version
of Rule 25, which states that:
10
Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as provided
for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a
competent court, guilty of, or found by the Commission to be suffering from any disqualification provided by law or
the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy
or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be summarily
dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized proceeding for
determining before election the qualifications of candidate. Such that, as presently required, to disqualify a
candidate there must be a declaration by a final judgment of a competent court that the candidate sought to be
disqualified "is guilty of or found by the Commission to be suffering from any disqualification provided by law or the
Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the other.
Both do not allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to determine the
qualification of a candidate. The facts of qualification must beforehand be established in a prior proceeding before
an authority properly vested with jurisdiction. The prior determination of qualification may be by statute, by executive
order or by a judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification
"provided by law or the Constitution," neither can the certificate of candidacy be cancelled or denied due course on
grounds of false representations regarding his or her qualifications, without a prior authoritative finding that he or
she is not qualified, such prior authority being the necessary measure by which the falsity of the representation can
be found. The only exception that can be conceded are self-evident facts of unquestioned or unquestionable
veracity and judicial confessions. Such are, anyway, bases equivalent to prior decisions against which the falsity of
representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as in this
case, alleged false representations regarding the candidate's citizenship and residence, forced the COMELEC to
rule essentially that since foundlings108 are not mentioned in the enumeration of citizens under the 1935
Constitution,109 they then cannot be citizens. As the COMELEC stated in oral arguments, when petitioner admitted
that she is a foundling, she said it all. This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after
saying that it cannot rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is certain
that such relationship is indemonstrable," proceeded to say that "she now has the burden to present evidence to
prove her natural filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in
Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity and Filiation.110 That said, there
is more than sufficient evider1ce that petitioner has Filipino parents and is therefore a natural-born Filipino.
Parenthetically, the burden of proof was on private respondents to show that petitioner is not a Filipino citizen. The
private respondents should have shown that both of petitioner's parents were aliens. Her admission that she is a
foundling did not shift the burden to her because such status did not exclude the possibility that her parents were
Filipinos, especially as in this case where there is a high probability, if not certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such parents
are Filipinos. Under Section 4, Rule 128:
11
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce belief in
its existence or no-existence. Evidence on collateral matters shall not be allowed, except when it tends in any
reasonable degree to establish the probability of improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA)111 that from 1965 to 1975,
the total number of foreigners born in the Philippines was 15,986 while the total number of Filipinos born in the
country was 10,558,278. The statistical probability that any child born in the Philippines in that decade is natural-
born Filipino was 99.83%. For her part, petitioner presented census statistics for Iloilo Province for 1960 and 1970,
also from the PSA. In 1960, there were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the
population were Filipinos. In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also
presented were figures for the child producing ages (15-49). In 1960, there were 230,528 female Filipinos as against
730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and 886 male aliens,
or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female aliens, or 99.56%. That same year,
there were 245,740 Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these
figures. Notably, Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner was found
in 1968, the majority of the population in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an
infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino features: height, flat nasal bridge,
1âw phi1
straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according to the ordinary course of nature and the
ordinary habits of life.113 All of the foregoing evidence, that a person with typical Filipino features is abandoned in
Catholic Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that there
would be more than a 99% chance that a child born in the province would be a Filipino, would indicate more than
ample probability if not statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence
on which it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the Solicitor
General:
Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get pregnant
and leave their newborn babies behind. We do not face a situation where the probability is such that every foundling
would have a 50% chance of being a Filipino and a 50% chance of being a foreigner. We need to frame our
questions properly. What are the chances that the parents of anyone born in the Philippines would be foreigners?
Almost zero. What are the chances that the parents of anyone born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were 1,766,046
children born in the Philippines to Filipino parents, as opposed to 1,301 children in the Philippines of foreign parents.
Thus, for that sample period, the ratio of non-Filipino children to natural born Filipino children is 1:1357. This means
that the statistical probability that any child born in the Philippines would be a natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number of
Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino children is 1:661. This means
that the statistical probability that any child born in the Philippines on that decade would be a natural born Filipino is
99.83%.
We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident that the
statistical probability that a child born in the Philippines would be a natural born Filipino will not be affected by
whether or not the parents are known. If at all, the likelihood that a foundling would have a Filipino parent might
even be higher than 99.9%. Filipinos abandon their children out of poverty or perhaps, shame. We do not imagine
foreigners abandoning their children here in the Philippines thinking those infants would have better economic
opportunities or believing that this country is a tropical paradise suitable for raising abandoned children. I certainly
doubt whether a foreign couple has ever considered their child excess baggage that is best left behind.
12
To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical
chance that one among the thousands of these foundlings might be the child of not just one, but two, foreigners is
downright discriminatory, irrational, and unjust. It just doesn't make any sense. Given the statistical certainty - 99.9%
- that any child born in the Philippines would be a natural born citizen, a decision denying foundlings such status is
effectively a denial of their birthright. There is no reason why this Honorable Court should use an improbable
hypothetical to sacrifice the fundamental political rights of an entire class of human beings. Your Honor,
constitutional interpretation and the use of common sense are not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is
silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of
silence and ambiguity in the enumeration with respect to foundlings, there is a need to examine the intent of the
framers. In Nitafan v. Commissioner of Internal Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction
that the intent of the framers of the organic law and of the people adopting it should be given effect. The
primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose
of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the
people in ratifying the Constitution were guided mainly by the explanation offered by the framers.115
As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional Convention
show that the framers intended foundlings to be covered by the enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural children of a
foreign father and a Filipino mother not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman refers to natural
children or to any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or illegitimate
children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that is, I refer to
the Spanish Code wherein all children of unknown parentage born in Spanish territory are considered Spaniards,
because the presumption is that a child of unknown parentage is the son of a Spaniard. This may be applied in the
Philippines in that a child of unknown parentage born in the Philippines is deemed to be Filipino, and there is no
need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of unknown
parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.
13
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina with a foreigner
who does not recognize the child. Their parentage is not unknown and I think those of overseas Filipino mother and
father [whom the latter] does not recognize, should also be considered as Filipinos.
President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the constitution need [not]
refer to them. By international law the principle that children or people born in a country of unknown parents are
citizens in this nation is recognized, and it is not necessary to include a provision on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that
persons of "unknown parentage" are not citizens but only because their number was not enough to merit specific
mention. Such was the account,117 cited by petitioner, of delegate and constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino
citizens the illegitimate children with a foreign father of a mother who was a citizen of the Philippines, and
also foundlings; but this amendment was defeated primarily because the Convention believed that the
cases, being too few to warrant the inclusion of a provision in the Constitution to apply to them, should be
governed by statutory legislation. Moreover, it was believed that the rules of international law were already
clear to the effect that illegitimate children followed the citizenship of the mother, and that foundlings
followed the nationality of the place where they were found, thereby making unnecessary the inclusion in the
Constitution of the proposed amendment.
This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a textual
and explicit recognition of foundlings as Filipinos. And so, the way to explain the constitutional silence is by saying
that it was the view of Montinola and Roxas which prevailed that there is no more need to expressly declare
foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a constitution can
constitutionalize rules based on assumptions that are imperfect or even wrong. They can even overturn existing
rules. This is basic. What matters here is that Montinola and Roxas were able to convince their colleagues in the
convention that there is no more need to expressly declare foundlings as Filipinos because they are already
impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of
redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of
the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987 Constitution. It is appropriate to
invoke a famous scholar as he was paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is
silently vocal. 118
14
The Solicitor General makes the further point that the framers "worked to create a just and humane society," that
"they were reasonable patriots and that it would be unfair to impute upon them a discriminatory intent against
foundlings." He exhorts that, given the grave implications of the argument that foundlings are not natural-born
Filipinos, the Court must search the records of the 1935, 1973 and 1987 Constitutions "for an express intention to
deny foundlings the status of Filipinos. The burden is on those who wish to use the constitution to discriminate
against foundlings to show that the constitution really intended to take this path to the dark side and inflict this
across the board marginalization."
We find no such intent or language permitting discrimination against foundlings. On the contrary, all three
Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to render social justice.
Of special consideration are several provisions in the present charter: Article II, Section 11 which provides that the
"State values the dignity of every human person and guarantees full respect for human rights," Article XIII, Section 1
which mandates Congress to "give highest priority to the enactment of measures that protect and enhance the right
of all the people to human dignity, reduce social, economic, and political inequalities x x x" and Article XV, Section 3
which requires the State to defend the "right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development." Certainly, these provisions contradict an intent to discriminate against foundlings on account of their
unfortunate status.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide that
adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be
adopted. The most basic of such laws is Article 15 of the Civil Code which provides that "[l]aws relating to family
rights, duties, status, conditions, legal capacity of persons are binding on citizens of the Philippines even though
living abroad." Adoption deals with status, and a Philippine adoption court will have jurisdiction only if the adoptee is
a Filipino. In Ellis and Ellis v. Republic,119 a child left by an unidentified mother was sought to be adopted by aliens.
This Court said:
In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless it has
jurisdiction, not only over the subject matter of the case and over the parties, but also over the res, which is the
personal status of Baby Rose as well as that of petitioners herein. Our Civil Code (Art. 15) adheres to the theory that
jurisdiction over the status of a natural person is determined by the latter's nationality. Pursuant to this theory, we
have jurisdiction over the status of Baby Rose, she being a citizen of the Philippines, but not over the status of the
petitioners, who are foreigners.120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-Country
Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-Country Adoption Act of
1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption of Filipino Children and
For Other Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC
or the "Rule on Adoption," all expressly refer to "Filipino children" and include foundlings as among Filipino children
who may be adopted.
It has been argued that the process to determine that the child is a foundling leading to the issuance of a foundling
certificate under these laws and the issuance of said certificate are acts to acquire or perfect Philippine citizenship
which make the foundling a naturalized Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born
citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship." In the first place, "having to perform an act" means that the act must be
personally done by the citizen. In this instance, the determination of foundling status is done not by the child but by
the authorities.121 Secondly, the object of the process is the determination of the whereabouts of the parents, not the
citizenship of the child. Lastly, the process is certainly not analogous to naturalization proceedings to acquire
Philippine citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under
the 1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a
Foundling Certificate issued in her favor.122 The Decree of Adoption issued on 13 May 1974, which approved
petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife,
Rosario Militar, as her "foundling parents," hence effectively affirming petitioner's status as a foundling.123
15
Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can
become part of the sphere of domestic law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through a constitutional mechanism such as
local legislation.124 On the other hand, generally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
Generally accepted principles of international law include international custom as evidence of a general practice
accepted as law, and general principles of law recognized by civilized nations.125 International customary rules are
accepted as binding as a result from the combination of two elements: the established, widespread, and consistent
practice on the part of States; and a psychological element known as the opinionjuris 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.126 "General principles of law recognized by civilized nations" are principles
"established by a process of reasoning" or judicial logic, based on principles which are "basic to legal systems
generally,"127 such as "general principles of equity, i.e., the general principles of fairness and justice," and the
"general principle against discrimination" which is embodied in the "Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of
All Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and Occupation."128 These are the same core principles which
underlie the Philippine Constitution itself, as embodied in the due process and equal protection clauses of the Bill of
Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally
accepted principles of international law and binding on the State.130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the UNCRC
imposes the following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to
acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their
obligations under the relevant international instruments in this field, in particular where the child would otherwise be
stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 24
thereof provide for the right of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social
origin, property or birth, the right, to such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from birth
and ensure that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be
16
accomplished by the application of our present naturalization laws, Commonwealth Act No. 473, as amended, and
R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines, are generally accepted principles of
international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict
of Nationality Laws under which a foundling is presumed to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the country of birth. If the child's parentage is
established, its nationality shall be determined by the rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was
found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the country where he is found, contained
in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered
to have been born within the territory of parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of
Statelessness does not mean that their principles are not binding. While the Philippines is not a party to the 1930
Hague Convention, it is a signatory to the Universal Declaration on Human Rights, Article 15(1) ofwhich 131effectively
affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction
of Statelessness" merely "gives effect" to Article 15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court noted that
the Philippines had not signed or ratified the "International Convention for the Protection of All Persons from
Enforced Disappearance." Yet, we ruled that the proscription against enforced disappearances in the said
convention was nonetheless binding as a "generally accepted principle of international law." Razon v. Tagitis is
likewise notable for declaring the ban as a generally accepted principle of international law although the convention
had been ratified by only sixteen states and had not even come into force and which needed the ratification of a
minimum of twenty states. Additionally, as petitioner points out, the Court was content with the practice of
international and regional state organs, regional state practice in Latin America, and State Practice in the United
States.
Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, 134 where
only four countries had "either ratified or acceded to"135 the 1966 "Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters" when the case was decided in 2005. The Court also pointed
out that that nine member countries of the European Common Market had acceded to the Judgments Convention.
The Court also cited U.S. laws and jurisprudence on recognition of foreign judgments. In all, only the practices of
fourteen countries were considered and yet, there was pronouncement that recognition of foreign judgments was
widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of
international law" are based not only on international custom, but also on "general principles of law recognized by
civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness,
equity and the policy against discrimination, which are fundamental principles underlying the Bill of Rights and which
are "basic to legal systems generally,"136 support the notion that the right against enforced disappearances and the
recognition of foreign judgments, were correctly considered as "generally accepted principles of international law"
under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and Europe have
passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus
17
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness; twenty-six
(26) are not signatories to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed
out that in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as citizens. These
circumstances, including the practice of jus sanguinis countries, show that it is a generally accepted principle of
international law to presume foundlings as having been born of nationals of the country in which the foundling is
found.
Current legislation reveals the adherence of the Philippines to this generally accepted principle of international law.
In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer to "Filipino children."
In all of them, foundlings are among the Filipino children who could be adopted. Likewise, it has been pointed that
the DFA issues passports to foundlings. Passports are by law, issued only to citizens. This shows that even the
executive department, acting through the DFA, considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is
rational and reasonable and consistent with the jus sanguinis regime in our Constitution. The presumption of
natural-born citizenship of foundlings stems from the presumption that their parents are nationals of the Philippines.
As the empirical data provided by the PSA show, that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were
designed to address the plight of a defenseless class which suffers from a misfortune not of their own making. We
cannot be restrictive as to their application if we are a country which calls itself civilized and a member of the
community of nations. The Solicitor General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those treaties and conventions were
drafted because the world community is concerned that the situation of foundlings renders them legally invisible. It
would be tragically ironic if this Honorable Court ended up using the international instruments which seek to protect
and uplift foundlings a tool to deny them political status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did not
result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since the applicant must perform
an act, what is reacquired is not "natural-born" citizenship but only plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes in general
and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:
Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who
lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a
natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include Sobejana-
Condon v. COMELEC141 where we described it as an "abbreviated repatriation process that restores one's Filipino
citizenship x x x." Also included is Parreno v. Commission on Audit,142 which cited Tabasa v. Court of
Appeals,143where we said that "[t]he repatriation of the former Filipino will allow him to recover his natural-born
citizenship. Parreno v. Commission on Audit144 is categorical that "if petitioner reacquires his Filipino citizenship
(under R.A. No. 9225), he will ... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that natural-born
citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A. No. 9225 was obviously
passed in line with Congress' sole prerogative to determine how citizenship may be lost or reacquired. Congress
saw it fit to decree that natural-born citizenship may be reacquired even if it had been once lost. It is not for the
COMELEC to disagree with the Congress' determination.
18
More importantly, COMELEC's position that natural-born status must be continuous was already rejected
in Bengson III v. HRET145 where the phrase "from birth" was clarified to mean at the time of birth: "A person who at
the time of his birth, is a citizen of a particular country, is a natural-born citizen thereof." Neither is "repatriation" an
act to "acquire or perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that there are only two
types of citizens under the 1987 Constitution: natural-born citizen and naturalized, and that there is no third category
for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present Constitution that there are only two
classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, ie., did not have to undergo the process of naturalization to obtain Philippine
citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a separate
category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear:
as to such persons, they would either be natural-born or naturalized depending on the reasons for the loss of their
citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not
required by law to go through naturalization proceedings in order to reacquire his citizenship, he is perforce a
natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House
of Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always revisit
a doctrine, a new rule reversing standing doctrine cannot be retroactively applied. In Morales v. Court of Appeals
and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the condonation doctrine, we cautioned that it
"should be prospective in application for the reason that judicial decisions applying or interpreting the laws of the
Constitution, until reversed, shall form part of the legal system of the Philippines." This Court also said that "while
the future may ultimately uncover a doctrine's error, it should be, as a general rule, recognized as good law prior to
its abandonment. Consequently, the people's reliance thereupon should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when she put
in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the names of her adoptive parents,
and this misled the BI to presume that she was a natural-born Filipino. It has been contended that the data required
were the names of her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption is "to
sever all legal ties between the biological parents and the adoptee, except when the biological parent is the spouse
of the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an amended birth certificate "attesting to the
fact that the adoptee is the child of the adopter(s)" and which certificate "shall not bear any notation that it is an
amended issue."150 That law also requires that "[a]ll records, books, and papers relating to the adoption cases in the
files of the court, the Department [of Social Welfare and Development], or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential."151 The law therefore allows petitioner to
state that her adoptive parents were her birth parents as that was what would be stated in her birth certificate
anyway. And given the policy of strict confidentiality of adoption records, petitioner was not obligated to disclose that
she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for
cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The whole process undertaken
by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner committed false material
representation when she stated in her COC that she has before and until 9 May 2016 been a resident of the
Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day before
the 2016 elections, is true.
19
The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before the day
of the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner must have been a resident of
the Philippines prior to 9 May 2016 for ten (10) years. In answer to the requested information of "Period of
Residence in the Philippines up to the day before May 09, 2016," she put in "10 years 11 months" which according
to her pleadings in these cases corresponds to a beginning date of 25 May 2005 when she returned for good from
the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines. There are
three requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2. an intention to
remain there; and 3. an intention to abandon the old domicile.152 To successfully effect a change of domicile, one
must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former
place of residence and establishing a new one and definite acts which correspond with the purpose. In other words,
there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the
residence at the place chosen for the new domicile must be actual.153
Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile and
relocated to the Philippines for good. These evidence include petitioner's former U.S. passport showing her arrival
on 24 May 2005 and her return to the Philippines every time she travelled abroad; e-mail correspondences starting
in March 2005 to September 2006 with a freight company to arrange for the shipment of their household items
weighing about 28,000 pounds to the Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how
to ship their dog to the Philippines; school records of her children showing enrollment in Philippine schools starting
June 2005 and for succeeding years; tax identification card for petitioner issued on July 2005; titles for condominium
and parking slot issued in February 2006 and their corresponding tax declarations issued in April 2006; receipts
dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation of items from petitioner's
family; March 2006 e-mail to the U.S. Postal Service confirming request for change of address; final statement from
the First American Title Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-
up questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a Philippine resident
since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she
and her family stayed with affiant until the condominium was purchased); and Affidavit from petitioner's husband
(confirming that the spouses jointly decided to relocate to the Philippines in 2005 and that he stayed behind in the
U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in its
Resolution in the Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24 May 2005.
At the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence of the first two requisites,
namely, physical presence and animus manendi, but maintained there was no animus non-revertendi.154 The
COMELEC disregarded the import of all the evidence presented by petitioner on the basis of the position that the
earliest date that petitioner could have started residence in the Philippines was in July 2006 when her application
under R.A. No. 9225 was approved by the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon
v. COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, the private respondents also
added Reyes v. COMELEC.158 Respondents contend that these cases decree that the stay of an alien former Filipino
cannot be counted until he/she obtains a permanent resident visa or reacquires Philippine citizenship, a visa-free
entry under a balikbayan stamp being insufficient. Since petitioner was still an American (without any resident visa)
until her reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be
counted.
But as the petitioner pointed out, the facts in these four cases are very different from her situation. In Coquilla v.
COMELEC,159 the only evidence presented was a community tax certificate secured by the candidate and his
declaration that he would be running in the elections. Japzon v. COMELEC160 did not involve a candidate who
wanted to count residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that residence
is distinct from citizenship, the issue there was whether the candidate's acts after reacquisition sufficed to establish
residence. In Caballero v. COMELEC, 161 the candidate admitted that his place of work was abroad and that he only
visited during his frequent vacations. In Reyes v. COMELEC,162 the candidate was found to be an American citizen
20
who had not even reacquired Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She
was disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month stint as
provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is not sufficient to
prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents, the Court
had no choice but to hold that residence could be counted only from acquisition of a permanent resident visa or from
reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is overwhelming and taken together
leads to no other conclusion that she decided to permanently abandon her U.S. residence (selling the house, taking
the children from U.S. schools, getting quotes from the freight company, notifying the U.S. Post Office of the
abandonment of their address in the U.S., donating excess items to the Salvation Army, her husband resigning from
U.S. employment right after selling the U.S. house) and permanently relocate to the Philippines and actually re-
established her residence here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying
property here, constructing a residence here, returning to the Philippines after all trips abroad, her husband getting
employed here). Indeed, coupled with her eventual application to reacquire Philippine citizenship and her family's
actual continuous stay in the Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it
was for good.
In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-free as
a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a Balikbayan
Program," shows that there is no overriding intent to treat balikbayans as temporary visitors who must leave after
one year. Included in the law is a former Filipino who has been naturalized abroad and "comes or returns to the
Philippines." 163 The law institutes a balikbayan program "providing the opportunity to avail of the necessary training
to enable the balikbayan to become economically self-reliant members of society upon their return to the
country"164in line with the government's "reintegration program."165 Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it would
be an unduly harsh conclusion to say in absolute terms that the balikbayan must leave after one year. That visa-free
period is obviously granted him to allow him to re-establish his life and reintegrate himself into the community before
he attends to the necessary formal and legal requirements of repatriation. And that is exactly what petitioner did -
she reestablished life here by enrolling her children and buying property while awaiting the return of her husband
and then applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and
overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is unprecedented. There is
no judicial precedent that comes close to the facts of residence of petitioner. There is no indication in Coquilla v.
COMELEC,166 and the other cases cited by the respondents that the Court intended to have its rulings there apply to
a situation where the facts are different. Surely, the issue of residence has been decided particularly on the facts-of-
the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled that
petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC was false
because she put six ( 6) years and six ( 6) months as "period of residence before May 13, 2013" in her 2012 COC
for Senator. Thus, according to the COMELEC, she started being a Philippine resident only in November 2006. In
doing so, the COMELEC automatically assumed as true the statement in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC as the
period of residence as of the day she submitted that COC in 2012. She said that she reckoned residency from April-
May 2006 which was the period when the U.S. house was sold and her husband returned to the Philippines. In that
regard, she was advised by her lawyers in 2015 that residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as
inquiring about residence as of the time she submitted the COC, is bolstered by the change which the COMELEC
itself introduced in the 2015 COC which is now "period of residence in the Philippines up to the day before May 09,
2016." The COMELEC would not have revised the query if it did not acknowledge that the first version was vague.
21
That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the return of
her husband is plausible given the evidence that she had returned a year before. Such evidence, to repeat, would
include her passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive admission
against petitioner. It could be given in evidence against her, yes, but it was by no means conclusive. There is
precedent after all where a candidate's mistake as to period of residence made in a COC was overcome by
evidence. In Romualdez-Marcos v. COMELEC,167 the candidate mistakenly put seven (7) months as her period of
residence where the required period was a minimum of one year. We said that "[i]t is the fact of residence, not a
statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has
satisfied the constitutions residency qualification requirement." The COMELEC ought to have looked at the evidence
presented and see if petitioner was telling the truth that she was in the Philippines from 24 May 2005. Had the
COMELEC done its duty, it would have seen that the 2012 COC and the 2015 COC both correctly stated
the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically returned here
on 24 May 2005 not because it was false, but only because COMELEC took the position that domicile could be
established only from petitioner's repatriation under R.A. No. 9225 in July 2006. However, it does not take away the
fact that in reality, petitioner had returned from the U.S. and was here to stay permanently, on 24 May 2005. When
she claimed to have been a resident for ten (10) years and eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As already stated, a petition for quo
warranto had been filed against her with the SET as early as August 2015. The event from which the COMELEC
pegged the commencement of residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an
established fact to repeat, for purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner recounted
that this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist Alliance.
Petitioner appears to have answered the issue immediately, also in the press. Respondents have not disputed
petitioner's evidence on this point. From that time therefore when Rep. Tiangco discussed it in the media, the stated
period of residence in the 2012 COC and the circumstances that surrounded the statement were already matters of
public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her Verified
Answer, which was filed on 1 September 2015, admitted that she made a mistake in the 2012 COC when she put in
six ( 6) years and six ( 6) months as she misunderstood the question and could have truthfully indicated a longer
period. Her answer in the SET case was a matter of public record. Therefore, when petitioner accomplished her
COC for President on 15 October 2015, she could not be said to have been attempting to hide her erroneous
statement in her 2012 COC for Senator which was expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012 statement and
have it covered by the 2015 representation. Petitioner, moreover, has on her side this Court's pronouncement that:
Concededly, a candidate's disqualification to run for public office does not necessarily constitute material
misrepresentation which is the sole ground for denying due course to, and for the cancellation of, a COC. Further,
as already discussed, the candidate's misrepresentation in his COC must not only refer to a material fact (eligibility
and qualifications for elective office), but should evince a deliberate intent to mislead, misinform or hide a fact which
would otherwise render a candidate ineligible. It must be made with an intention to deceive the electorate as to
one's qualifications to run for public office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced dates all
of which can evince animus manendi to the Philippines and animus non revertedi to the United States of America.
The veracity of the events of coming and staying home was as much as dismissed as inconsequential, the focus
having been fixed at the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said "amounts
to a declaration and therefore an admission that her residence in the Philippines only commence sometime in
November 2006"; such that "based on this declaration, [petitioner] fails to meet the residency requirement for
22
President." This conclusion, as already shown, ignores the standing jurisprudence that it is the fact of residence, not
the statement of the person that determines residence for purposes of compliance with the constitutional
requirement of residency for election as President. It ignores the easily researched matter that cases on questions
of residency have been decided favorably for the candidate on the basis of facts of residence far less in number,
weight and substance than that presented by petitioner.169 It ignores, above all else, what we consider as a primary
reason why petitioner cannot be bound by her declaration in her COC for Senator which declaration was not even
considered by the SET as an issue against her eligibility for Senator. When petitioner made the declaration in her
COC for Senator that she has been a resident for a period of six (6) years and six (6) months counted up to the 13
May 2013 Elections, she naturally had as reference the residency requirements for election as Senator which was
satisfied by her declared years of residence. It was uncontested during the oral arguments before us that at the time
the declaration for Senator was made, petitioner did not have as yet any intention to vie for the Presidency in 2016
and that the general public was never made aware by petitioner, by word or action, that she would run for President
in 2016. Presidential candidacy has a length-of-residence different from that of a senatorial candidacy. There are
facts of residence other than that which was mentioned in the COC for Senator. Such other facts of residence have
never been proven to be false, and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the USA to finish
pending projects and arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian in Beacon
School in Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005. Anika was enrolled in
Learning Connection in San Juan in 2007, when she was already old enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place Condominium in San
Juan. [Petitioner] and her family lived in Unit 7F until the construction of their family home in Corinthian Hills was
completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who handled
[petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a new Certificate of Live
Birth indicating [petitioner's] new name and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L.
Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the family's
remaining household belongings. [Petitioner] returned to the Philippines on 11 March 2006.
1a\^/phi 1
In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's abandonment of
their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on 4 May 2006
and began working for a Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually built their
family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the exclusive
ground of false representation, to consider no other date than that mentioned by petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of the
Republic, the questioned Resolutions of the COMELEC in Division and En Banc are, one and all, deadly diseased
with grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

23
1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating
that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local
Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA No. 15-
002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for
the elective position of President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized
Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the Second
Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the Verified
Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The
Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the First
Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
is DECLARED QUALIFIED to be a candidate for President in the National and Local Elections of 9 May 2016.
SO ORDERED.
JOSE PORTUGAL PEREZ

Associate Justice
1
G.R. No. 134887 July 27, 2006
PHILIPPINE AGILA SATELLITE, INC. represented by MICHAEL C. U. DE GUZMAN, petitioner,

vs.
SEC. JOSEFINA TRINIDAD LICHAUCO and the HON. OMBUDSMAN, respondents.
DECISION
CARPIO MORALES, J.:
On June 6, 1994, a Memorandum of Understanding1 (MOU) was entered into by a consortium of private
telecommunications carriers and the Department of Transportation and Communications (DOTC) represented by
then Secretary Jesus B. Garcia, Jr. relative to the launching, ownership, operation and management of a Philippine
satellite by a Filipino-owned or controlled private consortium or corporation.
Pursuant to Article IV of the MOU, the consortium of private telecommunications carriers formed a corporation and
adopted the corporate name Philippine Agila Satellite, Inc. (PASI), herein petitioner.
By letter2 dated June 28, 1996, PASI president Rodrigo A. Silverio (Silverio) requested the then DOTC Secretary
Amado S. Lagdameo, Jr. for official government confirmation of the assignment of Philippine orbital slots 161ºE and
153ºE to PASI for its AGILA satellites.
In response to Silverio’s letter, Secretary Lagdameo, by letter3 dated July 3, 1996, confirmed the government’s
assignment of Philippine orbital slots 161ºE and 153ºE to PASI for its AGILA satellites.
PASI thereupon undertook preparations for the launching, operation and management of its satellites by, among
other things, obtaining loans, increasing its capital, conducting negotiations with its business partners, and making
an initial payment of US$ 3.5 million to Aerospatiale, a French satellite manufacturer.
Michael de Guzman (de Guzman), PASI President and Chief Executive Officer (CEO), later informed Jesli Lapuz
(Lapuz), President and CEO of the Landbank of the Philippines, by letter4 of December 3, 1996, of the government’s
assignment to PASI of orbital slots 161ºE and 153ºE and requested the bank’s confirmation of its participation in a
club loan in the amount of US$ 11 million, the proceeds of which would be applied to PASI’s interim satellite.
It appears that Lapuz sent a copy of De Guzman’s letter to then DOTC Undersecretary Josefina T. Lichauco,
(Lichauco) who, by letter5 of December 5, 1996, wrote Lapuz as follows:
1. Kindly be informed that there is simply no basis for Michael de Guzman to allege that the DOTC has
assigned two (2) slots to PASI. He conveniently neglected to attach as another annex, in addition to Sec.
Lagdameo’s letter of 3 July 1996 (Annex "A") the letter of 28 June (Annex "B") in response to which the July
3rd letter had been sent to PASI. Annex "B" precisely provides that one slot (153º E, to which the interim
satellite was supposed to migrate) was to be used for the migration of the Russian satellite in time for the
APEC Leaders’ Summit. This particular endeavor was not successful. The interim satellite "Gorizont" never
moved from its orbital location of 130ºE Longitude. Annex "C" is a letter from an official of the Subic Bay
Satellite Systems Inc., with its attachments, addressed to me stating that as of the 13th of November, no
such voyage to 153ºE orbital slot had been commenced. In fact DHI hid this fact from me, and in fact stated
that Gorizont had already moved and was on its way to 153ºE.
Since this timely migration did not happen in time for the APEC Leaders Meeting on 24 November, this
153ºE Longitude slot can no longer be assigned to PASI.
The other slot 161ºE Longitude is the one that can be made available for PASI’s eventual launch, in 1998
most likely, in exchange for one free satellite transponder unit utilization, for all requirements of Government.
These have yet to be embodied in a contract between PASI and the DOTC.
2
2. I understand from my meeting with DHI/PASI this morning, and from the de Guzman letter you sent to me,
that the latter are still interested in pursuing their "interim satellite project" and are applying for a loan with
your bank. Of course they can always pursue this as a business venture of DHI/PASI which is their own
corporate business decision. The DOTC supports this venture but they will be getting only one orbital slot for
both the Interim Satellite Project and for the Launch Project. I understand from today’s meeting with them
that this is technically feasible.
3. As regards the use of the name "Agila", Mr. de Guzman’s allegation that DHI/PASI has registered "Agila"
as a "corporate alias/trademark" is FALSE. There is no such thing as registration of a "corporate alias". Nor
for that matter can the trade name of a satellite be registered for just any satellite, where it was the President
who chose the name for the first Philippine satellite in orbit. No one else coined that name but he. He has
therefore given the name "Agila I" to the Mabuhay satellite now in orbit at 144ºE, being the first Philippine
satellite in orbit. He made this announcement in the presence of all the APEC Heads of State just before the
presentation to him of the Manila Action Plan for APEC. (Underscoring supplied)
Lichauco subsequently issued, in December 1997, a Notice of Offer6 for several orbital slots including 153ºE.
PASI, claiming that the offer was without its knowledge and that it subsequently came to learn that another company
whose identity had not been disclosed had submitted a bid and won the award for orbital slot 153ºE, filed on
January 23, 1998 a complaint7 before the Regional Trial Court (RTC) of Mandaluyong City against Lichauco and the
"Unknown Awardee," for injunction to enjoin the award of orbital slot 153ºE, declare its nullity, and for damages.
PASI also filed on February 23, 1998 a complaint before the Office of the Ombudsman against Secretary Josefina
Trinidad Lichauco. In his affidavit-complaint, de Guzman charged Lichauco with gross violation of Section 3(e) of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended, reading:
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall
apply to officers and employees of officers or government corporations charged with the grant of licenses or
permits or other concessions.
The complaint was docketed as OMB Case No. 0-98-0416. The Evaluation and Preliminary Investigation Bureau
(EPIB) of the Office of the Ombudsman, by Evaluation Report8 dated April 15, 1998, found the existence of a
prejudicial question after considering that "the case filed with the RTC involves facts intimately related to those upon
which the criminal prosecution would be based and that the guilt or the innocence of the accused would necessarily
be determined in the resolution of the issues raised in the civil case." It thus concluded that the filing of the
complaint before the Ombudsman "is premature since the issues involved herein are now subject of litigation in the
case filed with the RTC," and accordingly recommended its dismissal. Then Ombudsman Aniano A. Desierto
approved on April 24, 1998 the recommendation of the EPIB.
PASI moved to reconsider9 the dismissal of the complaint, but was denied by Order10 dated July 17, 1998.
In the meantime, a motion to dismiss the civil case against respondent was denied by the trial court. On elevation of
the order of denial to the Court of Appeals, said court, by Decision dated February 21, 2000, ordered the dismissal
of the case. This Court, by Decision dated May 3, 2006, ordered the reinstatement of the case, however.11
PASI is now before this Court via petition for review on certiorari, arguing that the Ombudsman erred in dismissing
the complaint.
In issue are 1) whether there exists a prejudicial question and, if in the affirmative, 2) whether the dismissal of the
complaint on that account is in order.
Section 7, Rule 111 of the Rules on Criminal Procedure provides:

3
Section 7. Elements of prejudicial question. – The elements of a prejudicial question are: (a) the previously
instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent
criminal action, and (b) the resolution of such issue determines whether or not the criminal action may
proceed.
The rationale for the principle of prejudicial question is that although it does not conclusively resolve the guilt or
innocence of the accused, it tests the sufficiency of the allegations in the complaint or information in order to sustain
the further prosecution of the criminal case.12 Hence, the need for its prior resolution before further proceedings in
the criminal action may be had.
PASI concedes that the issues in the civil case are similar or intimately related to the issue raised in the criminal
case. It contends, however, that the resolution of the issues in the civil case is not determinative of the guilt or
innocence of Lichauco, it arguing that even if she is adjudged liable for damages, it does not necessarily follow that
she would be convicted of the crime charged.
To determine the existence of a prejudicial question in the case before the Ombudsman, it is necessary to examine
the elements of Section 3(e) of R.A. 3019 for which Lichauco was charged and the causes of action in the civil case.
Section 3(e) of R.A. 3019 which was earlier quoted has the following elements:
1. The accused is a public officer discharging administrative or official functions or private persons charged
in conspiracy with them;
2. The public officer committed the prohibited act during the performance of his official duty or in relation to
his public position;
3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and
4. His action caused undue injury to the Government or any private party, or gave any party any
unwarranted benefit, advantage or preference to such parties.13
The civil case against Lichauco on the other hand involves three causes of action. The first, for injunction, seeks to
enjoin the award of orbital slot 153ºE, the DOTC having previously assigned the same to PASI; the second, for
declaration of nullity of award, seeks to nullify the award given to the undisclosed bidder for being beyond
Lichauco’s authority; and the third, for damages arising from Lichauco’s questioned acts.
If the award to the undisclosed bidder of orbital slot 153ºE is, in the civil case, declared valid for being within
Lichauco’s scope of authority to thus free her from liability for damages, there would be no prohibited act to speak
of nor would there be basis for undue injury claimed to have been suffered by petitioner. The finding by the
Ombudsman of the existence of a prejudicial question is thus well-taken.
Respecting the propriety of the dismissal by the Ombudsman of the complaint due to the pendency of a prejudicial
question, PASI argues that since the Rules of Procedure of the Office of the Ombudsman is silent on the matter, the
Rules of Court, specifically Section 6, Rule 111 of the Rules of Court, which now reads:
SECTION 6. Suspension by reason of prejudicial question. – A petition for suspension of the criminal action
based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor
or the court conducting the preliminary investigation. When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution
rests. (Underscoring supplied),
applies in a suppletory character.

4
The Ombudsman, on the other hand, argues that the above-quoted provision of the Rules of Court applies to cases
which are at the preliminary or trial stage and not to those, like the case subject of the present petition, at the
evaluation stage.
The Ombudsman goes on to proffer that at the evaluation stage, the investigating officer may recommend any of
several causes of action including dismissal of the complaint for want of palpable merit or subjecting the complaint
to preliminary investigation, and the evaluation of the complaint involves the discretion of the investigating officer
which this Court cannot interfere with.
While the evaluation of a complaint involves the discretion of the investigating officer, its exercise should not be
abused14 or wanting in legal basis.
Rule II, Section 2 of the Rules of Procedure of the Office of the Ombudsman reads:
SECTION 2. Evaluation. – Upon evaluating the complaint, the investigating officer shall recommend whether
it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation. (Underscoring supplied)
From the above-quoted provision, a complaint at the evaluation stage may be dismissed outright only for want of
palpable merit. Want of palpable merit obviously means that there is no basis for the charge or charges. If the
complaint has prima facie merit, however, the investigating officer shall recommend the adoption of any of the
actions enumerated above from (b) to (f).15
When, in the course of the actions taken by those to whom the complaint is endorsed or forwarded, a prejudicial
question is found to be pending, Section 6, Rule 111 of the Rules of Court should be applied in a suppletory
character.16 As laid down in Yap v. Paras,17 said rule directs that the proceedings may only be suspended, not
dismissed, and that it may be made only upon petition,and not at the instance of the judge alone or as in this case,
the investigating officer.
To give imprimatur to the Ombudsman’s dismissal of petitioner’s criminal complaint due to prejudicial question
would not only run counter to the provision of Section 6 of Rule 111 of the Rules of Court. It would sanction the
extinguishment of criminal liability, if there be any, through prescription under Article 89 vis a vis Articles 90 and 91
of the Revised Penal Code which respectively read:
ART. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability
therefore is extinguished only when the death of the offender occurs before final judgment;
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
5
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this Code. (Underscoring
supplied)
ART. 90. Prescription of crimes. — Crimes punishable by death, reclusion perpetua or reclusion
temporalshall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those
punishable by arresto mayor, which shall prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one year.
The offenses of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the
application of the rules contained in the first, second, and third paragraphs of this article. x x x
ART. 91. Computation of prescription of offenses. — The period of prescription shall commence to run from
the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be
interrupted by the filing of the complaint or information, and shall commence to run again when
such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.
x x x x (Emphasis and underscoring supplied)
WHEREFORE, the Order dated July 17, 1998 of respondent Ombudsman dismissing OMB Case No. 0-98-0416
against respondent then Secretary Josefina Trinidad Lichauco is SET ASIDE.
The Ombudsman is ORDERED to REINSTATE to its docket for further proceedings, in line with the foregoing
ratiocination, OMB Case No. 0-98-0416.
SO ORDERED.
1
G.R. No. 102667 February 23, 2000
AMADO J. LANSANG, petitioner,

vs.
COURT OF APPEALS, GENERAL ASSEMBLY OF THE BLIND, INC., and JOSE IGLESIAS, respondents.
QUISUMBING, J.:
Before us is a petition to review the decision of the Court of Appeals in C.A. G.R. CV No. 27244, which set aside the
ruling of the Regional Trial Court, Manila, Branch 8, in Civil Case No. 88-43887, and ordered petitioner Amado J.
Lansang to pay private respondent Jose Iglesias P50,000.00 in moral damages, P10,000.00 in exemplary damages
and P5,000.00 in attorney's fees.
Like public streets, public parks are beyond the commerce of man. However, private respondents were allegedly
awarded a "verbal contract of lease" in 1970 by the National Parks Development Committee (NPDC), a government
initiated civic body engaged in the development of national parks, including Rizal Park, 1 but actually administered by
high profile civic leaders and journalists. Whoever in NPDC gave such "verbal" accommodation to private
respondents was unclear, for indeed no document or instrument appears on record to show the grantor of the verbal
license to private respondents to occupy a portion of the government park dedicated to the national hero's memory.
Private respondents were allegedly given office and library space as well as kiosks area selling food and drinks.
One such kiosk was located along T.M. Kalaw St., in front of the Army and Navy Club. Private respondent General
Assembly of the Blind, Inc. (GABI) was to remit to NPDC, 40 percent of the profits derived from operating the
kiosks,2 without again anything shown in the record who received the share of the profits or how they were used or
spent.
With the change of government after the EDSA Revolution, the new Chairman of the NPDC, herein petitioner,
sought to clean up Rizal Park. In a written notice dated February 23, 1988 and received by private respondents on
February 29, 1988, petitioner terminated the so-called verbal agreement with GABI and demanded that the latter
vacate the premises and the kiosks it ran privately within the public park.3 In another notice dated March 5, 1988,
respondents were given until March 8, 1988 to vacate.4
The latter notice was signed by private respondent Iglesias, GABI president, allegedly to indicate his conformity to
its contents. However, Iglesias, who is totally blind, claims that he was deceived into signing the notice. He was
allegedly told by Ricardo Villanueva, then chief warden of Rizal Park, that he was merely acknowledging receipt of
the notice. Although blind, Iglesias as president was knowledgeable enough to run GABI as well as its business.
On the day of the supposed eviction, GABI filed an action for damages and injunction in the Regional Trial Court
against petitioner, Villanueva, and "all persons acting on their behalf".5 The trial court issued a temporary restraining
order on the same day.6
The TRO expired on March 28, 1988. The following day, GABI was finally evicted by NPDC.
GABI's action for damages and injunction was subsequently dismissed by the RTC, ruling that the complaint was
actually directed against the State which could not be sued without its consent. Moreover, the trial court ruled that
GABI could not claim damages under the alleged oral lease agreement since GABI was a mere accommodation
concessionaire. As such, it could only recover damages upon proof of the profits it could realize from the conclusion.
The trial court noted that no such proof was presented.
On appeal, the Court of Appeals reversed the decision of the trial court.
The Court of Appeals ruled that the mere allegation that a government official is being sued in his official capacity is
not enough to protect such official from liability for acts done without or in excess of his authority. 7 Granting that
petitioner had the authority to evict GABI from Rizal Park, "the abusive and capricious manner in which that
2
authority was exercised amounted to a legal wrong for which he must now be held liable for damages" 8 according to
the Court of Appeals.
The Court of Appeals noted that, as the trial court observed, the eviction of GABI came at the heels of two
significant incidents. First, after private respondent Iglesias extended monetary support to striking workers of the
NPDC, and second, after Iglesias sent the Tanodbayan, a letter on November 26, 1987, denouncing alleged graft
and corruption in the NPDC.9 These, according to the Court of Appeals, should not have been taken against GABI,
which had been occupying Rizal Park for nearly 20 years. GABI was evicted purportedly for violating its verbal
agreement with NPDC.10 However, the Court of Appeals pointed out that NPDC failed to present proof of such
violation.11
The Court of Appeals found petitioner liable for damages under Articles 19, 21, and 24 of the Civil Code.12
The Court of Appeals absolved from liability all other persons impleaded in GABI's complaint since it appeared that
they were merely acting under the orders of petitioner. The new officers of NPDC, additionally impleaded by GABI,
were likewise absolved from liability, absent any showing that they participated in the acts complained of. Petitioner
was ordered to pay private respondent Iglesias moral and exemplary damages and attorney's fees.
Hence, this petition, in which petitioner raises the following issues:
I. WHETHER OR NOT RESPONDENT COURT ERRED IN NOT HOLDING THAT PRIVATE

RESPONDENTS' COMPLAINT AGAINST PETITIONER, AS CHAIRMAN OF NPDC, AND HIS CO-
DEFENDANTS IN CIVIL CASE NO. 88-43887, IS IN EFFECT A SUIT AGAINST THE STATE WHICH
CANNOT BE SUED WITHOUT ITS CONSENT.
II. WHETHER OR NOT RESPONDENT COURT ERRED IN NOT HOLDING THAT PETITIONER'S ACT OF
TERMINATING RESPONDENT GABI'S CONCESSION IS VALID AND DONE IN THE LAWFUL
PERFORMANCE OF OFFICIAL DUTY.13
Petitioner insists that the complaint filed against him is in reality a complaint against the State, which could not
prosper without the latter's consent. He anchors his argument on the fact that NPDC is a government agency, and
that when he ordered the eviction of GABI, he was acting in his capacity as chairman of NPDC. Petitioner avers that
the mere allegation that he was being sued in his personal capacity did not remove the case from the coverage of
the law of public officers and the doctrine of state immunity.
Petitioner points out that Iglesias signed the notice of eviction to indicate his conformity thereto. He contends that as
evidence of private respondents' bad faith, they sued petitioner instead of complying with their undertaking to vacate
their library and kiosk at Rizal Park.
Petitioner adds that during the actual eviction, no untoward incident occurred. GABI's properties were properly
inventoried and stored.
According to petitioner, the Court of Appeals' observation that the eviction was prompted by Iglesias' support for
striking NPDC workers and the letter-complaint sent to the Tanodbayan is merely conjectural.
Finally, petitioner avers that the move to evict GABI and award the spaces it occupied to another group was an
executive policy decision within the discretion of NPDC. GABI's possession of the kiosks as concessionaire was by
mere tolerance of NPDC and, thus, such possession may be withdrawn at any time, with or without cause.
On the other hand, private respondents aver that petitioner acted beyond the scope of his authority when he showed
malice and bad faith in ordering GABI's ejectment from Rizal Park. Quoting from the decision of the Court of
Appeals, private respondents argue that petitioner is liable for damages for performing acts "to injure an individual
rather than to discharge a public duty."14
3
While private respondents recognize the authority of petitioner to terminate the agreement with GABI "if [the
contract] is prejudicial to the interest of the NPDC,"15 they maintain that petitioner's personal interest, and not that of
the NPDC, was the root cause of GABI's ejecment.
The doctrine of state immunity from suit applies to complaints filed against public officials for acts done in the
performance of their duties. The rule is that the suit must be regarded as one against the state where satisfaction of
the judgment against the public official concerned will require the state itself to perform a positive act, such as
appropriation of the amount necessary to pay the damages awarded to the plaintiff.16
The rule does not apply where the public official is charged in his official capacity for acts that are unlawful and
injurious to the rights of others.17 Public officials are not exempt, in their personal capacity, from liability arising from
acts committed in bad faith.18
Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal
capacity, although the acts complained of may have been committed while he occupied a public position.
We are convinced that petitioner is being sued not in his capacity as NPDC chairman but in his personal capacity.
The complaint filed by private respondents in the RTC merely identified petitioner as chairman of the NPDC, but did
not categorically state that he is being sued in that capacity.19 Also, it is evident from paragraph 4 of said complaint
that petitioner was sued allegedly for having personal motives in ordering the ejectment of GABI from Rizal Park.
4. Defendant AMADO J. LANSANG, JR., the Chairman of the National Parks Development
Committee, acting under the spirit of revenge, ill-will, evil motive and personal resentment against
plaintiff JOSE IGLESIAS, served on the plaintiff corporation a letter, dated February 23, 1988 terminating
plaintiffs lease agreement with a demand for the plaintiff corporation to vacate its office premises. .
.20 (Emphasis supplied.)
The parties do not dispute that it was petitioner who ordered the ejectment of GABI from their office and kiosk at
Rizal Park. There is also no dispute that petitioner, as chairman of the NPDC which was the agency tasked to
administer Rizal Park, had the authority to terminate the agreement with GABI21 and order the organization's
ejectment. The question now is whether or not petitioner abused his authority in ordering the ejectment of private
respondents.
We find, however, no evidence of such abuse of authority on record. As earlier stated, Rizal Park is beyond the
commerce of man and, thus, could not be the subject of a lease contract. Admittedly, there was no written contract.
That private respondents were allowed to occupy office and kiosk spaces in the park was only a matter of
accommodation by the previous administrator. This being so, also admittedly, petitioner may validly discontinue the
accommodation extended to private respondents, who may be ejected from the park when necessary. Private
respondents cannot and does not claim a vested right to continue to occupy Rizal Park.
The Court of Appeals awarded private respondent Iglesias moral and exemplary damages and attorney's fees.
However, we find no evidence on record to support Iglesias' claim that he suffered moral injury as a result of GABI's
ejectment from Rizal Park. Absent any satisfactory proof upon which the Court may base the amount of damages
suffered, the award of moral damages cannot be sustained.22
Neither can we sustain the award of exemplary damages, which may only be awarded in addition to moral,
temperate, liquidated, or compensatory damages.23 We also disallow the award for attorney's fees, which can only
be recovered per stipulation of the parties, which is absent in this case. There is no showing that any of the
exceptions justifying the award of attorney's fees absent a stipulation is present in this case.24
WHEREFORE, the instant petition is GRANTED. The decision of the Court of Appeals in CA-G.R. CV No. 27244 is
hereby SET ASIDE, and the DISMISSAL of the complaint for damages by the trial court for want of merit is
AFFIRMED. No costs.
SO ORDERED.
1
G.R. No. L-30044 December 19, 1973
LORENZO SAYSON, as Highway Auditor, Bureau of Public Highways, Cebu First Engineering District;
CORNELIO FORNIER, as Regional Supervising Auditor, Eastern Visayas Region; ASTERIO, BUQUERON,
ADVENTOR FERNANDEZ, MANUEL S. LEPATAN, RAMON QUIRANTE, and TEODULFO REGIS, petitioners,
vs.
FELIPE SINGSON, as sole owner and proprietor of Singkier Motor Service, respondent.
Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for petitioners.
Teodoro Almase and Casiano U. Laput for respondent.
FERNANDO, J.:
The real party in interest before this Court in this certiorari proceeding to review a decision of the Court of First
Instance of Cebu is the Republic of the Philippines, although the petitioners are the public officials who were named
as respondents1 in a mandamus suit below. Such is the contention of the then Solicitor General, now Associate
Justice, Felix V. Makasiar,2 for as he did point out, what is involved is a money claim against the government,
predicated on a contract. The basic doctrine of non-suability of the government without its consent is thus decisive
of the controversy. There is a governing statute that is controlling.3 Respondent Felipe Singson, the claimant, for
reasons known to him, did not choose to abide by its terms. That was a fatal misstep. The lower court, however, did
not see it that way. We cannot affirm its decision.
As found by the lower court, the facts are the following: "In January, 1967, the Office of the District Engineer
requisitioned various items of spare parts for the repair of a D-8 bulldozer, ... . The requisition (RIV No. 67/0331)
was signed by the District Engineer, Adventor Fernandez, and the Requisitioning Officer (civil engineer), Manuel S.
Lepatan. ... It was approved by the Secretary of Public Works and Communications, Antonio V. Raquiza. It is noted
in the approval of the said requisition that "This is an exception to the telegram dated Feb. 21, 1967 of the Secretary
of Public Works and Communications." ... So, a canvass or public bidding was conducted on May 5, 1967 ... . The
committee on award accepted the bid of the Singkier Motor Service [owned by respondent Felipe Singson] for the
sum of P43,530.00. ... Subsequently, it was approved by the Secretary of Public Works and Communications; and
on May 16, 1967 the Secretary sent a letter-order to the Singkier Motor Service, Mandaue, Cebu requesting it to
immediately deliver the items listed therein for the lot price of P43,530.00. ... It would appear that a purchase order
signed by the District Engineer, the Requisitioning Officer and the Procurement Officer, was addressed to the
Singkier Motor Service. ... In due course the Voucher No. 07806 reached the hands of Highway Auditor Sayson for
pre-audit. He then made inquiries about the reasonableness of the price. ... Thus, after finding from the
indorsements of the Division Engineer and the Commissioner of Public Highways that the prices of the various
spare parts are just and reasonable and that the requisition was also approved by no less than the Secretary of
Public Works and Communications with the verification of V.M. Secarro a representative of the Bureau of Supply
Coordination, Manila, he approved it for payment in the sum of P34,824.00, with the retention of 20% equivalent to
P8,706.00. ... His reason for withholding the 20% equivalent to P8,706.00 was to submit the voucher with the
supporting papers to the Supervising Auditor, which he did. ... The voucher ... was paid on June 9, 1967 in the
amount of P34,824.00 to the petitioner [respondent Singson]. On June 10,1967, Highway Auditor Sayson received a
telegram from Supervising Auditor Fornier quoting a telegraphic message of the General Auditing Office which
states: "In view of excessive prices charge for purchase of spare parts and equipment shown by vouchers already
submitted this Office direct all highway auditors refer General Office payment similar nature for appropriate action."
... In the interim it would appear that when the voucher and the supporting papers reached the GAO, a canvass was
made of the spare parts among the suppliers in Manila, particularly, the USI (Phil.), which is the exclusive dealer of
the spare parts of the caterpillar tractors in the Philippines. Said firm thus submitted its quotations at P2,529.64 only
which is P40,000.00 less than the price of the Singkier. ... In view of the overpricing the GAO took up the matter with
the Secretary of Public Works in a third indorsement of July 18, 1967. ... The Secretary then circularized a telegram
holding the district engineer responsible for overpricing."4 What is more, charges for malversation were filed against
the district engineer and the civil engineer involved. It was the failure of the Highways Auditor, one of the petitioners
before us, that led to the filing of the mandamus suit below, with now respondent Singson as sole proprietor of
Singkier Motor Service, being adjudged as entitled to collect the balance of P8,706.00, the contract in question
having been upheld. Hence this appeal by certiorari.
2
1. To state the facts is to make clear the solidity of the stand taken by the Republic. The lower court was unmindful
of the fundamental doctrine of non-suability. So it was stressed in the petition of the then Solicitor General Makasiar.
Thus: "It is apparent that respondent Singson's cause of action is a money claim against the government, for the
payment of the alleged balance of the cost of spare parts supplied by him to the Bureau of Public Highways.
Assuming momentarily the validity of such claim, although as will be shown hereunder, the claim is void for the
cause or consideration is contrary to law, morals or public policy, mandamus is not the remedy to enforce the
collection of such claim against the State but a ordinary action for specific performance ... . Actually, the suit
disguised as one for mandamus to compel the Auditors to approve the vouchers for payment, is a suit against the
State, which cannot prosper or be entertained by the Court except with the consent of the State ... . In other words,
the respondent should have filed his claim with the General Auditing Office, under the provisions of Com. Act 327 ...
which prescribe the conditions under which money claim against the government may be
filed ...."5 Commonwealth Act No. 327 is quite explicit. It is therein provided: "In all cases involving the settlement of
accounts or claims, other than those of accountable officers, the Auditor General shall act and decide the same
within sixty days, exclusive of Sundays and holidays, after their presentation. If said accounts or claims need
reference to other persons, office or offices, or to a party interested, the period aforesaid shall be counted from the
time the last comment necessary to a proper decision is received by
him."6 Thereafter, the procedure for appeal is indicated: "The party aggrieved by the final decision of the Auditor
General in the settlement of an account or claim may, within thirty days from receipt of the decision, take an appeal
in writing: (a) To the President of the United States, pending the final and complete withdrawal of her sovereignty
over the Philippines, or (b) To the President of the Philippines, or (c) To the Supreme Court of the Philippines if the
appellant is a private person or entity."7
2. With the facts undisputed and the statute far from indefinite or ambiguous, the appealed decision defies
explanation. It would be to disregard a basic corollary of the cardinal postulate of non-suability. It is true that once
consent is secured, an action may be filed. There is nothing to prevent the State, however, in such statutory grant,
to require that certain administrative proceedings be had and be exhausted. Also, the proper forum in the judicial
hierarchy can be specified if thereafter an appeal would be taken by the party aggrieved. Here, there was no ruling
of the Auditor General. Even had there been such, the court to which the matter should have been elevated is this
Tribunal; the lower court could not legally act on the matter. What transpired was anything but that. It is quite
obvious then that it does not have the imprint of validity.
WHEREFORE, the decision of the Court of First Instance of Cebu of September 4, 1968 is reversed and set aside,
and the suit for mandamus filed against petitioners, respondents below, is dismissed. With costs against respondent
Felipe Singson.
G.R. No. 171182 August 23, 2012
UNIVERSITY OF THE PHILIPPINES, JOSE V. ABUEVA, RAUL P. DE GUZMAN, RUBEN P. ASPIRAS,

EMMANUEL P. BELLO, WILFREDO P. DAVID, CASIANO S. ABRIGO, and JOSEFINA R.
LICUANAN,Petitioners,
vs.
HON. AGUSTIN S. DIZON, his capacity as Presiding Judge of the Regional Trial Court of Quezon City,
Branch 80, STERN BUILDERS, INC., and SERVILLANO DELA CRUZ, Respondents.
DECISION
BERSAMIN, J.:
Trial judges should not immediately issue writs of execution or garnishment against the Government or any of its
subdivisions, agencies and instrumentalities to enforce money judgments.1 They should bear in mind that the
primary jurisdiction to examine, audit and settle all claims of any sort due from the Government or any of its
subdivisions, agencies and instrumentalities pertains to the Commission on Audit (COA) pursuant to Presidential
Decree No. 1445 (Government Auditing Code of the Philippines).
The Case
On appeal by the University of the Philippines and its then incumbent officials (collectively, the UP) is the decision
promulgated on September 16, 2005,2 whereby the Court of Appeals (CA) upheld the order of the Regional Trial
Court (RTC), Branch 80, in Quezon City that directed the garnishment of public funds amounting to ₱ 16,370,191.74
belonging to the UP to satisfy the writ of execution issued to enforce the already final and executory judgment
against the UP.
Antecedents
On August 30, 1990, the UP, through its then President Jose V. Abueva, entered into a General Construction
Agreement with respondent Stern Builders Corporation (Stern Builders), represented by its President and General
Manager Servillano dela Cruz, for the construction of the extension building and the renovation of the College of
Arts and Sciences Building in the campus of the University of the Philippines in Los Baños (UPLB).3
In the course of the implementation of the contract, Stern Builders submitted three progress billings corresponding
to the work accomplished, but the UP paid only two of the billings. The third billing worth ₱ 273,729.47 was not paid
due to its disallowance by the Commission on Audit (COA). Despite the lifting of the disallowance, the UP failed to
pay the billing, prompting Stern Builders and dela Cruz to sue the UP and its co-respondent officials to collect the
unpaid billing and to recover various damages. The suit, entitled Stern Builders Corporation and Servillano R. Dela
Cruz v. University of the Philippines Systems, Jose V. Abueva, Raul P. de Guzman, Ruben P. Aspiras, Emmanuel
P. Bello, Wilfredo P. David, Casiano S. Abrigo, and Josefina R. Licuanan, was docketed as Civil Case No. Q-93-
14971 of the Regional Trial Court in Quezon City (RTC).4
After trial, on November 28, 2001, the RTC rendered its decision in favor of the plaintiffs,5 viz:
Wherefore, in the light of the foregoing, judgment is hereby rendered in favor of the plaintiff and against the
defendants ordering the latter to pay plaintiff, jointly and severally, the following, to wit:
1. ₱ 503,462.74 amount of the third billing, additional accomplished work and retention money
2. ₱ 5,716,729.00 in actual damages
3. ₱ 10,000,000.00 in moral damages
4. ₱ 150,000.00 and ₱ 1,500.00 per appearance as attorney’s fees; and
5. Costs of suit.
SO ORDERED.
Following the RTC’s denial of its motion for reconsideration on May 7, 2002,6 the UP filed a notice of appeal on June
3, 2002.7 Stern Builders and dela Cruz opposed the notice of appeal on the ground of its filing being belated, and
moved for the execution of the decision. The UP countered that the notice of appeal was filed within the
reglementary period because the UP’s Office of Legal Affairs (OLS) in Diliman, Quezon City received the order of
denial only on May 31, 2002. On September 26, 2002, the RTC denied due course to the notice of appeal for having
been filed out of time and granted the private respondents’ motion for execution.8
The RTC issued the writ of execution on October 4, 2002,9 and the sheriff of the RTC served the writ of execution
and notice of demand upon the UP, through its counsel, on October 9, 2002.10 The UP filed an urgent motion to
reconsider the order dated September 26, 2002, to quash the writ of execution dated October 4, 2002, and to
restrain the proceedings.11 However, the RTC denied the urgent motion on April 1, 2003.12
On June 24, 2003, the UP assailed the denial of due course to its appeal through a petition for certiorari in the Court
of Appeals (CA), docketed as CA-G.R. No. 77395.13
On February 24, 2004, the CA dismissed the petition for certiorari upon finding that the UP’s notice of appeal had
been filed late,14 stating:
Records clearly show that petitioners received a copy of the Decision dated November 28, 2001 and January 7,
2002, thus, they had until January 22, 2002 within which to file their appeal. On January 16, 2002 or after the lapse
of nine (9) days, petitioners through their counsel Atty. Nolasco filed a Motion for Reconsideration of the aforesaid
decision, hence, pursuant to the rules, petitioners still had six (6) remaining days to file their appeal. As admitted by
the petitioners in their petition (Rollo, p. 25), Atty. Nolasco received a copy of the Order denying their motion for
reconsideration on May 17, 2002, thus, petitioners still has until May 23, 2002 (the remaining six (6) days) within
which to file their appeal. Obviously, petitioners were not able to file their Notice of Appeal on May 23, 2002 as it
was only filed on June 3, 2002.
In view of the said circumstances, We are of the belief and so holds that the Notice of Appeal filed by the petitioners
was really filed out of time, the same having been filed seventeen (17) days late of the reglementary period. By
reason of which, the decision dated November 28, 2001 had already become final and executory. "Settled is the rule
that the perfection of an appeal in the manner and within the period permitted by law is not only mandatory but
jurisdictional, and failure to perfect that appeal renders the challenged judgment final and executory. This is not an
empty procedural rule but is grounded on fundamental considerations of public policy and sound practice." (Ram’s
Studio and Photographic Equipment, Inc. vs. Court of Appeals, 346 SCRA 691, 696). Indeed, Atty. Nolasco received
the order of denial of the Motion for Reconsideration on May 17, 2002 but filed a Notice of Appeal only on June 3,
3003. As such, the decision of the lower court ipso facto became final when no appeal was perfected after the lapse
of the reglementary period. This procedural caveat cannot be trifled with, not even by the High Court.15
The UP sought a reconsideration, but the CA denied the UP’s motion for reconsideration on April 19, 2004.16
On May 11, 2004, the UP appealed to the Court by petition for review on certiorari (G.R. No. 163501).
On June 23, 2004, the Court denied the petition for review.17 The UP moved for the reconsideration of the denial of
its petition for review on August 29, 2004,18 but the Court denied the motion on October 6, 2004.19 The denial
became final and executory on November 12, 2004.20
In the meanwhile that the UP was exhausting the available remedies to overturn the denial of due course to the
appeal and the issuance of the writ of execution, Stern Builders and dela Cruz filed in the RTC their motions for
execution despite their previous motion having already been granted and despite the writ of execution having
already issued. On June 11, 2003, the RTC granted another motion for execution filed on May 9, 2003 (although the
RTC had already issued the writ of execution on October 4, 2002).21
On June 23, 2003 and July 25, 2003, respectively, the sheriff served notices of garnishment on the UP’s depository
banks, namely: Land Bank of the Philippines (Buendia Branch) and the Development Bank of the Philippines (DBP),
Commonwealth Branch.22 The UP assailed the garnishment through an urgent motion to quash the notices of
garnishment;23 and a motion to quash the writ of execution dated May 9, 2003.24
On their part, Stern Builders and dela Cruz filed their ex parte motion for issuance of a release order.25
On October 14, 2003, the RTC denied the UP’s urgent motion to quash, and granted Stern Builders and dela Cruz’s
ex parte motion for issuance of a release order.26
The UP moved for the reconsideration of the order of October 14, 2003, but the RTC denied the motion on
November 7, 2003.27
On January 12, 2004, Stern Builders and dela Cruz again sought the release of the garnished funds. 28 Despite the
UP’s opposition,29 the RTC granted the motion to release the garnished funds on March 16, 2004.30 On April 20,
2004, however, the RTC held in abeyance the enforcement of the writs of execution issued on October 4, 2002 and
June 3, 2003 and all the ensuing notices of garnishment, citing Section 4, Rule 52, Rules of Court, which provided
that the pendency of a timely motion for reconsideration stayed the execution of the judgment.31
On December 21, 2004, the RTC, through respondent Judge Agustin S. Dizon, authorized the release of the
garnished funds of the UP,32 to wit:
WHEREFORE, premises considered, there being no more legal impediment for the release of the garnished amount
in satisfaction of the judgment award in the instant case, let the amount garnished be immediately released by the
Development Bank of the Philippines, Commonwealth Branch, Quezon City in favor of the plaintiff.
SO ORDERED.
The UP was served on January 3, 2005 with the order of December 21, 2004 directing DBP to release the
garnished funds.33
On January 6, 2005, Stern Builders and dela Cruz moved to cite DBP in direct contempt of court for its non-
compliance with the order of release.34
Thereupon, on January 10, 2005, the UP brought a petition for certiorari in the CA to challenge the jurisdiction of the
RTC in issuing the order of December 21, 2004 (CA-G.R. CV No. 88125).35 Aside from raising the denial of due
process, the UP averred that the RTC committed grave abuse of discretion amounting to lack or excess of
jurisdiction in ruling that there was no longer any legal impediment to the release of the garnished funds. The UP
argued that government funds and properties could not be seized by virtue of writs of execution or garnishment, as
held in Department of Agriculture v. National Labor Relations Commission,36 and citing Section 84 of Presidential
Decree No. 1445 to the effect that "revenue funds shall not be paid out of any public treasury or depository except in
pursuance of an appropriation law or other specific statutory authority;" and that the order of garnishment clashed
with the ruling in University of the Philippines Board of Regents v. Ligot-Telan37 to the effect that the funds belonging
to the UP were public funds.
On January 19, 2005, the CA issued a temporary restraining order (TRO) upon application by the UP.38
On March 22, 2005, Stern Builders and dela Cruz filed in the RTC their amended motion for sheriff’s assistance to
implement the release order dated December 21, 2004, stating that the 60-day period of the TRO of the CA had
already lapsed.39 The UP opposed the amended motion and countered that the implementation of the release order
be suspended.40
On May 3, 2005, the RTC granted the amended motion for sheriff’s assistance and directed the sheriff to proceed to
the DBP to receive the check in satisfaction of the judgment.41
The UP sought the reconsideration of the order of May 3, 2005.42
On May 16, 2005, DBP filed a motion to consign the check representing the judgment award and to dismiss the
motion to cite its officials in contempt of court.43
On May 23, 2005, the UP presented a motion to withhold the release of the payment of the judgment award.44
On July 8, 2005, the RTC resolved all the pending matters,45 noting that the DBP had already delivered to the sheriff
Manager’s Check No. 811941 for ₱ 16,370,191.74 representing the garnished funds payable to the order of Stern
Builders and dela Cruz as its compliance with the RTC’s order dated December 21, 2004.46 However, the RTC
directed in the same order that Stern Builders and dela Cruz should not encash the check or withdraw its amount
pending the final resolution of the UP’s petition for certiorari, to wit:47
To enable the money represented in the check in question (No. 00008119411) to earn interest during the pendency
of the defendant University of the Philippines application for a writ of injunction with the Court of Appeals the same
may now be deposited by the plaintiff at the garnishee Bank (Development Bank of the Philippines), the disposition
of the amount represented therein being subject to the final outcome of the case of the University of the Philippines
et al., vs. Hon. Agustin S. Dizon et al., (CA G.R. 88125) before the Court of Appeals.
Let it be stated herein that the plaintiff is not authorized to encash and withdraw the amount represented in the
check in question and enjoy the same in the fashion of an owner during the pendency of the case between the
parties before the Court of Appeals which may or may not be resolved in plaintiff’s favor.
With the end in view of seeing to it that the check in question is deposited by the plaintiff at the Development Bank
of the Philippines (garnishee bank), Branch Sheriff Herlan Velasco is directed to accompany and/or escort the
plaintiff in making the deposit of the check in question.
SO ORDERED.
On September 16, 2005, the CA promulgated its assailed decision dismissing the UP’s petition for certiorari, ruling
that the UP had been given ample opportunity to contest the motion to direct the DBP to deposit the check in the
name of Stern Builders and dela Cruz; and that the garnished funds could be the proper subject of garnishment
because they had been already earmarked for the project, with the UP holding the funds only in a fiduciary
capacity,48 viz:
Petitioners next argue that the UP funds may not be seized for execution or garnishment to satisfy the judgment
award. Citing Department of Agriculture vs. NLRC, University of the Philippines Board of Regents vs. Hon. Ligot-
Telan, petitioners contend that UP deposits at Land Bank and the Development Bank of the Philippines, being
government funds, may not be released absent an appropriations bill from Congress.
The argument is specious. UP entered into a contract with private respondents for the expansion and renovation of
the Arts and Sciences Building of its campus in Los Baños, Laguna. Decidedly, there was already an appropriations
earmarked for the said project. The said funds are retained by UP, in a fiduciary capacity, pending completion of the
construction project.
We agree with the trial Court [sic] observation on this score:
"4. Executive Order No. 109 (Directing all National Government Agencies to Revert Certain Accounts
Payable to the Cumulative Result of Operations of the National Government and for Other Purposes)
Section 9. Reversion of Accounts Payable, provides that, all 1995 and prior years documented accounts
payable and all undocumented accounts regardless of the year they were incurred shall be reverted to the
Cumulative Result of Operations of the National Government (CROU). This shall apply to accounts payable
of all funds, except fiduciary funds, as long as the purpose for which the funds were created have not been
accomplished and accounts payable under foreign assisted projects for the duration of the said project. In
this regard, the Department of Budget and Management issued Joint-Circular No. 99-6 4.0 (4.3) Procedural
Guidelines which provides that all accounts payable that reverted to the CROU may be considered for
payment upon determination thru administrative process, of the existence, validity and legality of the claim.
Thus, the allegation of the defendants that considering no appropriation for the payment of any amount
awarded to plaintiffs appellee the funds of defendant-appellants may not be seized pursuant to a writ of
execution issued by the regular court is misplaced. Surely when the defendants and the plaintiff entered into
the General Construction of Agreement there is an amount already allocated by the latter for the said project
which is no longer subject of future appropriation."49
After the CA denied their motion for reconsideration on December 23, 2005, the petitioners appealed by petition for
review.
Matters Arising During the Pendency of the Petition
On January 30, 2006, Judge Dizon of the RTC (Branch 80) denied Stern Builders and dela Cruz’s motion to
withdraw the deposit, in consideration of the UP’s intention to appeal to the CA,50 stating:
Since it appears that the defendants are intending to file a petition for review of the Court of Appeals resolution in
CA-G.R. No. 88125 within the reglementary period of fifteen (15) days from receipt of resolution, the Court agrees
with the defendants stand that the granting of plaintiffs’ subject motion is premature.
Let it be stated that what the Court meant by its Order dated July 8, 2005 which states in part that the "disposition of
the amount represented therein being subject to the final outcome of the case of the University of the Philippines, et.
al., vs. Hon. Agustin S. Dizon et al., (CA G.R. No. 88125 before the Court of Appeals) is that the judgment or
resolution of said court has to be final and executory, for if the same will still be elevated to the Supreme Court, it will
not attain finality yet until the highest court has rendered its own final judgment or resolution.51
However, on January 22, 2007, the UP filed an Urgent Application for A Temporary Restraining Order and/or A Writ
of Preliminary Injunction,52 averring that on January 3, 2007, Judge Maria Theresa dela Torre-Yadao (who had
meanwhile replaced Judge Dizon upon the latter’s appointment to the CA) had issued another order allowing Stern
Builders and dela Cruz to withdraw the deposit,53 to wit:
It bears stressing that defendants’ liability for the payment of the judgment obligation has become indubitable due to
the final and executory nature of the Decision dated November 28, 2001. Insofar as the payment of the [sic]
judgment obligation is concerned, the Court believes that there is nothing more the defendant can do to escape
liability. It is observed that there is nothing more the defendant can do to escape liability. It is observed that
defendant U.P. System had already exhausted all its legal remedies to overturn, set aside or modify the decision
(dated November 28, 2001( rendered against it. The way the Court sees it, defendant U.P. System’s petition before
the Supreme Court concerns only with the manner by which said judgment award should be satisfied. It has nothing
to do with the legality or propriety thereof, although it prays for the deletion of [sic] reduction of the award of moral
damages.
It must be emphasized that this Court’s finding, i.e., that there was sufficient appropriation earmarked for the project,
was upheld by the Court of Appeals in its decision dated September 16, 2005. Being a finding of fact, the Supreme
Court will, ordinarily, not disturb the same was said Court is not a trier of fact. Such being the case, defendants’
arguments that there was no sufficient appropriation for the payment of the judgment obligation must fail.
While it is true that the former Presiding Judge of this Court in its Order dated January 30, 2006 had stated that:
Let it be stated that what the Court meant by its Order dated July 8, 2005 which states in part that the "disposition of
the amount represented therein being subject to the final outcome of the case of the University of the Philippines, et.
al., vs. Hon. Agustin S. Dizon et al., (CA G.R. No. 88125 before the Court of Appeals) is that the judgment or
resolution of said court has to be final and executory, for if the same will still be elevated to the Supreme Court, it will
not attain finality yet until the highest court has rendered its own final judgment or resolution.
it should be noted that neither the Court of Appeals nor the Supreme Court issued a preliminary injunction enjoining
the release or withdrawal of the garnished amount. In fact, in its present petition for review before the Supreme
Court, U.P. System has not prayed for the issuance of a writ of preliminary injunction. Thus, the Court doubts
whether such writ is forthcoming.
The Court honestly believes that if defendants’ petition assailing the Order of this Court dated December 31, 2004
granting the motion for the release of the garnished amount was meritorious, the Court of Appeals would have
issued a writ of injunction enjoining the same. Instead, said appellate court not only refused to issue a wit of
preliminary injunction prayed for by U.P. System but denied the petition, as well.54
The UP contended that Judge Yadao thereby effectively reversed the January 30, 2006 order of Judge Dizon
disallowing the withdrawal of the garnished amount until after the decision in the case would have become final and
executory.
Although the Court issued a TRO on January 24, 2007 to enjoin Judge Yadao and all persons acting pursuant to her
authority from enforcing her order of January 3, 2007,55 it appears that on January 16, 2007, or prior to the issuance
of the TRO, she had already directed the DBP to forthwith release the garnished amount to Stern Builders and dela
Cruz; 56 and that DBP had forthwith complied with the order on January 17, 2007 upon the sheriff’s service of the
order of Judge Yadao.57
These intervening developments impelled the UP to file in this Court a supplemental petition on January 26,
2007,58alleging that the RTC (Judge Yadao) gravely erred in ordering the immediate release of the garnished
amount despite the pendency of the petition for review in this Court.
The UP filed a second supplemental petition59 after the RTC (Judge Yadao) denied the UP’s motion for the
redeposit of the withdrawn amount on April 10, 2007,60 to wit:
This resolves defendant U.P. System’s Urgent Motion to Redeposit Judgment Award praying that plaintiffs be
directed to redeposit the judgment award to DBP pursuant to the Temporary Restraining Order issued by the
Supreme Court. Plaintiffs opposed the motion and countered that the Temporary Restraining Order issued by the
Supreme Court has become moot and academic considering that the act sought to be restrained by it has already
been performed. They also alleged that the redeposit of the judgment award was no longer feasible as they have
already spent the same.
It bears stressing, if only to set the record straight, that this Court did not – in its Order dated January 3, 2007 (the
implementation of which was restrained by the Supreme Court in its Resolution dated January 24, 2002) – direct
that that garnished amount "be deposited with the garnishee bank (Development Bank of the Philippines)". In the
first place, there was no need to order DBP to make such deposit, as the garnished amount was already deposited
in the account of plaintiffs with the DBP as early as May 13, 2005. What the Court granted in its Order dated
January 3, 2007 was plaintiff’s motion to allow the release of said deposit. It must be recalled that the Court found
plaintiff’s motion meritorious and, at that time, there was no restraining order or preliminary injunction from either the
Court of Appeals or the Supreme Court which could have enjoined the release of plaintiffs’ deposit. The Court also
took into account the following factors:
a) the Decision in this case had long been final and executory after it was rendered on November 28, 2001;
b) the propriety of the dismissal of U.P. System’s appeal was upheld by the Supreme Court;
c) a writ of execution had been issued;
d) defendant U.P. System’s deposit with DBP was garnished pursuant to a lawful writ of execution issued by
the Court; and
e) the garnished amount had already been turned over to the plaintiffs and deposited in their account with
DBP.
The garnished amount, as discussed in the Order dated January 16, 2007, was already owned by the plaintiffs,
having been delivered to them by the Deputy Sheriff of this Court pursuant to par. (c), Section 9, Rule 39 of the 1997
Rules of Civil Procedure. Moreover, the judgment obligation has already been fully satisfied as per Report of the
Deputy Sheriff.
Anent the Temporary Restraining Order issued by the Supreme Court, the same has become functus oficio, having
been issued after the garnished amount had been released to the plaintiffs. The judgment debt was released to the
plaintiffs on January 17, 2007, while the Temporary Restraining Order issued by the Supreme Court was received
by this Court on February 2, 2007. At the time of the issuance of the Restraining Order, the act sought to be
restrained had already been done, thereby rendering the said Order ineffectual.
After a careful and thorough study of the arguments advanced by the parties, the Court is of the considered opinion
that there is no legal basis to grant defendant U.P. System’s motion to redeposit the judgment amount. Granting
said motion is not only contrary to law, but it will also render this Court’s final executory judgment nugatory.
Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of
justice that once a judgment has become final the issue or cause involved therein should be laid to rest. This
doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice. In
fact, nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and
unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to
be made by the court rendering it or by the highest court of the land.
WHEREFORE, premises considered, finding defendant U.P. System’s Urgent Motion to Redeposit Judgment Award
devoid of merit, the same is hereby DENIED.
SO ORDERED.
Issues
The UP now submits that:
I
THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DISMISSING THE PETITION, ALLOWING IN
EFFECT THE GARNISHMENT OF UP FUNDS, WHEN IT RULED THAT FUNDS HAVE ALREADY BEEN
EARMARKED FOR THE CONSTRUCTION PROJECT; AND THUS, THERE IS NO NEED FOR FURTHER
APPROPRIATIONS.
II
THE COURT OF APPEALS COMMITTED GRAVE ERROR IN ALLOWING GARNISHMENT OF A STATE
UNIVERSITY’S FUNDS IN VIOLATION OF ARTICLE XIV, SECTION 5(5) OF THE CONSTITUTION.
III
IN THE ALTERNATIVE, THE UNIVERSITY INVOKES EQUITY AND THE REVIEW POWERS OF THIS
HONORABLE COURT TO MODIFY, IF NOT TOTALLY DELETE THE AWARD OF ₱ 10 MILLION AS MORAL
DAMAGES TO RESPONDENTS.
IV
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE RELEASE OF THE
JUDGMENT AWARD IN ITS ORDER DATED 3 JANUARY 2007 ON THE GROUND OF EQUITY AND JUDICIAL
COURTESY.
V
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE RELEASE OF THE
JUDGMENT AWARD IN ITS ORDER DATED 16 JANUARY 2007 ON THE GROUND THAT PETITIONER
UNIVERSITY STILL HAS A PENDING MOTION FOR RECONSIDERATION OF THE ORDER DATED 3 JANUARY
2007.
VI
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN NOT ORDERING THE REDEPOSIT OF THE
GARNISHED AMOUNT TO THE DBP IN VIOLATION OF THE CLEAR LANGUAGE OF THE SUPREME COURT
RESOLUTION DATED 24 JANUARY 2007.
The UP argues that the amount earmarked for the construction project had been purposely set aside only for the
aborted project and did not include incidental matters like the awards of actual damages, moral damages and
attorney’s fees. In support of its argument, the UP cited Article 12.2 of the General Construction Agreement, which
stipulated that no deductions would be allowed for the payment of claims, damages, losses and expenses, including
attorney’s fees, in case of any litigation arising out of the performance of the work. The UP insists that the CA
decision was inconsistent with the rulings in Commissioner of Public Highways v. San Diego 61 and Department of
Agriculture v. NLRC62 to the effect that government funds and properties could not be seized under writs of
execution or garnishment to satisfy judgment awards.
Furthermore, the UP contends that the CA contravened Section 5, Article XIV of the Constitution by allowing the
garnishment of UP funds, because the garnishment resulted in a substantial reduction of the UP’s limited budget
allocated for the remuneration, job satisfaction and fulfillment of the best available teachers; that Judge Yadao
should have exhibited judicial courtesy towards the Court due to the pendency of the UP’s petition for review; and
that she should have also desisted from declaring that the TRO issued by this Court had become functus officio.
Lastly, the UP states that the awards of actual damages of ₱ 5,716,729.00 and moral damages of ₱ 10 million
should be reduced, if not entirely deleted, due to its being unconscionable, inequitable and detrimental to public
service.
In contrast, Stern Builders and dela Cruz aver that the petition for review was fatally defective for its failure to
mention the other cases upon the same issues pending between the parties (i.e., CA-G.R. No. 77395 and G.R No.
163501); that the UP was evidently resorting to forum shopping, and to delaying the satisfaction of the final
judgment by the filing of its petition for review; that the ruling in Commissioner of Public Works v. San Diego had no
application because there was an appropriation for the project; that the UP retained the funds allotted for the project
only in a fiduciary capacity; that the contract price had been meanwhile adjusted to ₱ 22,338,553.25, an amount
already more than sufficient to cover the judgment award; that the UP’s prayer to reduce or delete the award of
damages had no factual basis, because they had been gravely wronged, had been deprived of their source of
income, and had suffered untold miseries, discomfort, humiliation and sleepless years; that dela Cruz had even
been constrained to sell his house, his equipment and the implements of his trade, and together with his family had
been forced to live miserably because of the wrongful actuations of the UP; and that the RTC correctly declared the
Court’s TRO to be already functus officio by reason of the withdrawal of the garnished amount from the DBP.
The decisive issues to be considered and passed upon are, therefore:
(a) whether the funds of the UP were the proper subject of garnishment in order to satisfy the judgment award; and
(b) whether the UP’s prayer for the deletion of the awards of actual damages of ₱ 5,716,729.00, moral damages of
₱ 10,000,000.00 and attorney’s fees of ₱ 150,000.00 plus ₱ 1,500.00 per appearance could be granted despite the
finality of the judgment of the RTC.
Ruling
The petition for review is meritorious.
I.
UP’s funds, being government funds,
are not subject to garnishment
The UP was founded on June 18, 1908 through Act 1870 to provide advanced instruction in literature, philosophy,
the sciences, and arts, and to give professional and technical training to deserving students.63 Despite its
establishment as a body corporate,64 the UP remains to be a "chartered institution"65 performing a legitimate
government function. It is an institution of higher learning, not a corporation established for profit and declaring any
dividends.66 In enacting Republic Act No. 9500 (The University of the Philippines Charter of 2008), Congress has
declared the UP as the national university67 "dedicated to the search for truth and knowledge as well as the
development of future leaders."68
Irrefragably, the UP is a government instrumentality,69 performing the State’s constitutional mandate of promoting
quality and accessible education.70 As a government instrumentality, the UP administers special funds sourced from
the fees and income enumerated under Act No. 1870 and Section 1 of Executive Order No. 714, 71 and from the
yearly appropriations, to achieve the purposes laid down by Section 2 of Act 1870, as expanded in Republic Act No.
9500.72 All the funds going into the possession of the UP, including any interest accruing from the deposit of such
funds in any banking institution, constitute a "special trust fund," the disbursement of which should always be
aligned with the UP’s mission and purpose,73 and should always be subject to auditing by the COA.74
Presidential Decree No. 1445 defines a "trust fund" as a fund that officially comes in the possession of an agency of
the government or of a public officer as trustee, agent or administrator, or that is received for the fulfillment of some
obligation.75 A trust fund may be utilized only for the "specific purpose for which the trust was created or the funds
received."76
The funds of the UP are government funds that are public in character. They include the income accruing from the
use of real property ceded to the UP that may be spent only for the attainment of its institutional objectives.77 Hence,
the funds subject of this action could not be validly made the subject of the RTC’s writ of execution or garnishment.
The adverse judgment rendered against the UP in a suit to which it had impliedly consented was not immediately
enforceable by execution against the UP,78 because suability of the State did not necessarily mean its liability.79
A marked distinction exists between suability of the State and its liability. As the Court succinctly stated in
Municipality of San Fernando, La Union v. Firme:80
A distinction should first be made between suability and liability. "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.
Also, in Republic v. Villasor,81 where the issuance of an alias writ of execution directed against the funds of the
Armed Forces of the Philippines to satisfy a final and executory judgment was nullified, the Court said:
xxx The universal rule that where the State gives its consent to be sued by private parties either by general or
special law, it may limit claimant’s action "only up to the completion of proceedings anterior to the stage of
execution" and that the power of the Courts ends when the judgment is rendered, since government funds and
properties may not be seized under writs of execution or garnishment to satisfy such judgments, is based on
obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding
appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by
law.
The UP correctly submits here that the garnishment of its funds to satisfy the judgment awards of actual and moral
damages (including attorney’s fees) was not validly made if there was no special appropriation by Congress to cover
the liability. It was, therefore, legally unwarranted for the CA to agree with the RTC’s holding in the order issued on
April 1, 2003 that no appropriation by Congress to allocate and set aside the payment of the judgment awards was
necessary because "there (were) already an appropriations (sic) earmarked for the said project."82 The CA and the
RTC thereby unjustifiably ignored the legal restriction imposed on the trust funds of the Government and its
agencies and instrumentalities to be used exclusively to fulfill the purposes for which the trusts were created or for
which the funds were received except upon express authorization by Congress or by the head of a government
agency in control of the funds, and subject to pertinent budgetary laws, rules and regulations.83
Indeed, an appropriation by Congress was required before the judgment that rendered the UP liable for moral and
actual damages (including attorney’s fees) would be satisfied considering that such monetary liabilities were not
covered by the "appropriations earmarked for the said project." The Constitution strictly mandated that "(n)o money
shall be paid out of the Treasury except in pursuance of an appropriation made by law."84
II
COA must adjudicate private respondents’ claim
before execution should proceed
The execution of the monetary judgment against the UP was within the primary jurisdiction of the COA. This was
expressly provided in Section 26 of Presidential Decree No. 1445, to wit:
Section 26. General jurisdiction. - The authority and powers of the Commission shall extend to and comprehend all
matters relating to auditing procedures, systems and controls, the keeping of the general accounts of the
Government, the preservation of vouchers pertaining thereto for a period of ten years, the examination and
inspection of the books, records, and papers relating to those accounts; and the audit and settlement of the
accounts of all persons respecting funds or property received or held by them in an accountable capacity, as well as
the examination, audit, and settlement of all debts and claims of any sort due from or owing to the Government or
any of its subdivisions, agencies and instrumentalities. The said jurisdiction extends to all government-owned or
controlled corporations, including their subsidiaries, and other self-governing boards, commissions, or agencies of
the Government, and as herein prescribed, including non governmental entities subsidized by the government,
those funded by donations through the government, those required to pay levies or government share, and those for
which the government has put up a counterpart fund or those partly funded by the government.
It was of no moment that a final and executory decision already validated the claim against the UP. The settlement
of the monetary claim was still subject to the primary jurisdiction of the COA despite the final decision of the RTC
having already validated the claim.85 As such, Stern Builders and dela Cruz as the claimants had no alternative
except to first seek the approval of the COA of their monetary claim.
On its part, the RTC should have exercised utmost caution, prudence and judiciousness in dealing with the motions
for execution against the UP and the garnishment of the UP’s funds. The RTC had no authority to direct the
immediate withdrawal of any portion of the garnished funds from the depository banks of the UP. By eschewing
utmost caution, prudence and judiciousness in dealing with the execution and garnishment, and by authorizing the
withdrawal of the garnished funds of the UP, the RTC acted beyond its jurisdiction, and all its orders and issuances
thereon were void and of no legal effect, specifically: (a) the order Judge Yadao issued on January 3, 2007 allowing
Stern Builders and dela Cruz to withdraw the deposited garnished amount; (b) the order Judge Yadao issued on
January 16, 2007 directing DBP to forthwith release the garnish amount to Stern Builders and dela Cruz; (c) the
sheriff’s report of January 17, 2007 manifesting the full satisfaction of the writ of execution; and (d) the order of April
10, 2007 deying the UP’s motion for the redeposit of the withdrawn amount. Hence, such orders and issuances
should be struck down without exception.
Nothing extenuated Judge Yadao’s successive violations of Presidential Decree No. 1445. She was aware of
Presidential Decree No. 1445, considering that the Court circulated to all judges its Administrative Circular No. 10-
2000,86 issued on October 25, 2000, enjoining them "to observe utmost caution, prudence and judiciousness in the
issuance of writs of execution to satisfy money judgments against government agencies and local government units"
precisely in order to prevent the circumvention of Presidential Decree No. 1445, as well as of the rules and
procedures of the COA, to wit:
In order to prevent possible circumvention of the rules and procedures of the Commission on Audit, judges
are hereby enjoined to observe utmost caution, prudence and judiciousness in the issuance of writs of
execution to satisfy money judgments against government agencies and local government units.
Judges should bear in mind that in Commissioner of Public Highways v. San Diego (31 SCRA 617, 625 1970), this
Court explicitly stated:
"The universal rule that where the State gives its consent to be sued by private parties either by general or special
law, it may limit claimant’s action ‘only up to the completion of proceedings anterior to the stage of execution’ and
that the power of the Court ends when the judgment is rendered, since government funds and properties may not be
seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations of
public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by
law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the
diversion of public funds from their legitimate and specific objects, as appropriated by law.
Moreover, it is settled jurisprudence that upon determination of State liability, the prosecution, enforcement
or satisfaction thereof must still be pursued in accordance with the rules and procedures laid down in P.D.
No. 1445, otherwise known as the Government Auditing Code of the Philippines (Department of Agriculture
v. NLRC, 227 SCRA 693, 701-02 1993 citing Republic vs. Villasor, 54 SCRA 84 1973). All money claims
against the Government must first be filed with the Commission on Audit which must act upon it within
sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court
on certiorari and in effect, sue the State thereby (P.D. 1445, Sections 49-50).
However, notwithstanding the rule that government properties are not subject to levy and execution unless
otherwise provided for by statute (Republic v. Palacio, 23 SCRA 899 1968; Commissioner of Public Highways v.
San Diego, supra) or municipal ordinance (Municipality of Makati v. Court of Appeals, 190 SCRA 206 1990), the
Court has, in various instances, distinguished between government funds and properties for public use and those
not held for public use. Thus, in Viuda de Tan Toco v. Municipal Council of Iloilo (49 Phil 52 1926, the Court ruled
that "where property of a municipal or other public corporation is sought to be subjected to execution to satisfy
judgments recovered against such corporation, the question as to whether such property is leviable or not is to be
determined by the usage and purposes for which it is held." The following can be culled from Viuda de Tan Toco v.
Municipal Council of Iloilo:
1. Properties held for public uses – and generally everything held for governmental purposes – are not
subject to levy and sale under execution against such corporation. The same rule applies to funds in the
hands of a public officer and taxes due to a municipal corporation.
2. Where a municipal corporation owns in its proprietary capacity, as distinguished from its public or government
capacity, property not used or used for a public purpose but for quasi-private purposes, it is the general rule that
such property may be seized and sold under execution against the corporation.
3. Property held for public purposes is not subject to execution merely because it is temporarily used for private
purposes. If the public use is wholly abandoned, such property becomes subject to execution.
This Administrative Circular shall take effect immediately and the Court Administrator shall see to it that it is faithfully
implemented.
Although Judge Yadao pointed out that neither the CA nor the Court had issued as of then any writ of preliminary
injunction to enjoin the release or withdrawal of the garnished amount, she did not need any writ of injunction from a
superior court to compel her obedience to the law. The Court is disturbed that an experienced judge like her should
look at public laws like Presidential Decree No. 1445 dismissively instead of loyally following and unquestioningly
implementing them. That she did so turned her court into an oppressive bastion of mindless tyranny instead of
having it as a true haven for the seekers of justice like the UP.
III
Period of appeal did not start without effective
service of decision upon counsel of record;
Fresh-period rule announced in
Neypes v. Court of Appeals
can be given retroactive application
The UP next pleads that the Court gives due course to its petition for review in the name of equity in order to reverse
or modify the adverse judgment against it despite its finality. At stake in the UP’s plea for equity was the return of the
amount of ₱ 16,370,191.74 illegally garnished from its trust funds. Obstructing the plea is the finality of the judgment
based on the supposed tardiness of UP’s appeal, which the RTC declared on September 26, 2002. The CA upheld
the declaration of finality on February 24, 2004, and the Court itself denied the UP’s petition for review on that issue
on May 11, 2004 (G.R. No. 163501). The denial became final on November 12, 2004.
It is true that a decision that has attained finality becomes immutable and unalterable, and cannot be modified in any
respect,87 even if the modification is meant to correct erroneous conclusions of fact and law, and whether the
modification is made by the court that rendered it or by this Court as the highest court of the land. 88 Public policy
dictates that once a judgment becomes final, executory and unappealable, the prevailing party should not be
deprived of the fruits of victory by some subterfuge devised by the losing party. Unjustified delay in the enforcement
of such judgment sets at naught the role and purpose of the courts to resolve justiciable controversies with
finality.89Indeed, all litigations must at some time end, even at the risk of occasional errors.
But the doctrine of immutability of a final judgment has not been absolute, and has admitted several exceptions,
among them: (a) the correction of clerical errors; (b) the so-called nunc pro tunc entries that cause no prejudice to
any party; (c) void judgments; and (d) whenever circumstances transpire after the finality of the decision that render
its execution unjust and inequitable.90 Moreover, in Heirs of Maura So v. Obliosca,91 we stated that despite the
absence of the preceding circumstances, the Court is not precluded from brushing aside procedural norms if only to
serve the higher interests of justice and equity. Also, in Gumaru v. Quirino State College,92 the Court nullified the
proceedings and the writ of execution issued by the RTC for the reason that respondent state college had not been
represented in the litigation by the Office of the Solicitor General.
We rule that the UP’s plea for equity warrants the Court’s exercise of the exceptional power to disregard the
declaration of finality of the judgment of the RTC for being in clear violation of the UP’s right to due process.
Both the CA and the RTC found the filing on June 3, 2002 by the UP of the notice of appeal to be tardy. They based
their finding on the fact that only six days remained of the UP’s reglementary 15-day period within which to file the
notice of appeal because the UP had filed a motion for reconsideration on January 16, 2002 vis-à-vis the RTC’s
decision the UP received on January 7, 2002; and that because the denial of the motion for reconsideration had
been served upon Atty. Felimon D. Nolasco of the UPLB Legal Office on May 17, 2002, the UP had only until May
23, 2002 within which to file the notice of appeal.
The UP counters that the service of the denial of the motion for reconsideration upon Atty. Nolasco was defective
considering that its counsel of record was not Atty. Nolasco of the UPLB Legal Office but the OLS in Diliman,
Quezon City; and that the period of appeal should be reckoned from May 31, 2002, the date when the OLS received
the order. The UP submits that the filing of the notice of appeal on June 3, 2002 was well within the reglementary
period to appeal.
We agree with the submission of the UP.
Firstly, the service of the denial of the motion for reconsideration upon Atty. Nolasco of the UPLB Legal Office was
invalid and ineffectual because he was admittedly not the counsel of record of the UP. The rule is that it is on the
counsel and not the client that the service should be made.93
That counsel was the OLS in Diliman, Quezon City, which was served with the denial only on May 31, 2002. As
such, the running of the remaining period of six days resumed only on June 1, 2002,94 rendering the filing of the
UP’s notice of appeal on June 3, 2002 timely and well within the remaining days of the UP’s period to appeal.
Verily, the service of the denial of the motion for reconsideration could only be validly made upon the OLS in
Diliman, and no other. The fact that Atty. Nolasco was in the employ of the UP at the UPLB Legal Office did not
render the service upon him effective. It is settled that where a party has appeared by counsel, service must be
made upon such counsel.95 Service on the party or the party’s employee is not effective because such notice is not
notice in law.96 This is clear enough from Section 2, second paragraph, of Rule 13, Rules of Court, which explicitly
states that: "If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them,
unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he
shall only be entitled to one copy of any paper served upon him by the opposite side." As such, the period to appeal
resumed only on June 1, 2002, the date following the service on May 31, 2002 upon the OLS in Diliman of the copy
of the decision of the RTC, not from the date when the UP was notified.97
Accordingly, the declaration of finality of the judgment of the RTC, being devoid of factual and legal bases, is set
aside.
Secondly, even assuming that the service upon Atty. Nolasco was valid and effective, such that the remaining
period for the UP to take a timely appeal would end by May 23, 2002, it would still not be correct to find that the
judgment of the RTC became final and immutable thereafter due to the notice of appeal being filed too late on June
3, 2002.
In so declaring the judgment of the RTC as final against the UP, the CA and the RTC applied the rule contained in
the second paragraph of Section 3, Rule 41 of the Rules of Court to the effect that the filing of a motion for
reconsideration interrupted the running of the period for filing the appeal; and that the period resumed upon notice of
the denial of the motion for reconsideration. For that reason, the CA and the RTC might not be taken to task for
strictly adhering to the rule then prevailing.
However, equity calls for the retroactive application in the UP’s favor of the fresh-period rule that the Court first
announced in mid-September of 2005 through its ruling in Neypes v. Court of Appeals,98 viz:
To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases,
the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional
Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.
The retroactive application of the fresh-period rule, a procedural law that aims "to regiment or make the appeal
period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration
(whether full or partial) or any final order or resolution,"99 is impervious to any serious challenge. This is because
there are no vested rights in rules of procedure.100 A law or regulation is procedural when it prescribes rules and
forms of procedure in order that courts may be able to administer justice.101 It does not come within the legal
conception of a retroactive law, or is not subject of the general rule prohibiting the retroactive operation of statues,
but is given retroactive effect in actions pending and undetermined at the time of its passage without violating any
right of a person who may feel that he is adversely affected.
We have further said that a procedural rule that is amended for the benefit of litigants in furtherance of the
administration of justice shall be retroactively applied to likewise favor actions then pending, as equity delights in
equality.102 We may even relax stringent procedural rules in order to serve substantial justice and in the exercise of
this Court’s equity jurisdiction.103 Equity jurisdiction aims to do complete justice in cases where a court of law is
unable to adapt its judgments to the special circumstances of a case because of the inflexibility of its statutory or
legal jurisdiction.104
It is cogent to add in this regard that to deny the benefit of the fresh-period rule to the UP would amount to injustice
and absurdity – injustice, because the judgment in question was issued on November 28, 2001 as compared to the
judgment in Neypes that was rendered in 1998; absurdity, because parties receiving notices of judgment and final
orders issued in the year 1998 would enjoy the benefit of the fresh-period rule but the later rulings of the lower
courts like that herein would not.105
Consequently, even if the reckoning started from May 17, 2002, when Atty. Nolasco received the denial, the UP’s
filing on June 3, 2002 of the notice of appeal was not tardy within the context of the fresh-period rule. For the UP,
the fresh period of 15-days counted from service of the denial of the motion for reconsideration would end on June
1, 2002, which was a Saturday. Hence, the UP had until the next working day, or June 3, 2002, a Monday, within
which to appeal, conformably with Section 1 of Rule 22, Rules of Court, which holds that: "If the last day of the
period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time
shall not run until the next working day."
IV
Awards of monetary damages,
being devoid of factual and legal bases,
did not attain finality and should be deleted
Section 14 of Article VIII of the Constitution prescribes that express findings of fact and of law should be made in the
decision rendered by any court, to wit:
Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and
the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied
without stating the legal basis therefor.
Implementing the constitutional provision in civil actions is Section 1 of Rule 36, Rules of Court, viz:
Section 1. Rendition of judgments and final orders. — A judgment or final order determining the merits of the case
shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law
on which it is based, signed by him, and filed with the clerk of the court. (1a)
The Constitution and the Rules of Court apparently delineate two main essential parts of a judgment, namely: the
body and the decretal portion. Although the latter is the controlling part,106 the importance of the former is not to be
lightly regarded because it is there where the court clearly and distinctly states its findings of fact and of law on
which the decision is based. To state it differently, one without the other is ineffectual and useless. The omission of
either inevitably results in a judgment that violates the letter and the spirit of the Constitution and the Rules of Court.
The term findings of fact that must be found in the body of the decision refers to statements of fact, not to
conclusions of law.107 Unlike in pleadings where ultimate facts alone need to be stated, the Constitution and the
Rules of Court require not only that a decision should state the ultimate facts but also that it should specify the
supporting evidentiary facts, for they are what are called the findings of fact.
The importance of the findings of fact and of law cannot be overstated. The reason and purpose of the Constitution
and the Rules of Court in that regard are obviously to inform the parties why they win or lose, and what their rights
and obligations are. Only thereby is the demand of due process met as to the parties. As Justice Isagani A. Cruz
explained in Nicos Industrial Corporation v. Court of Appeals:108
It is a requirement of due process that the parties to a litigation be informed of how it was decided, with an
explanation of the factual and legal reasons that led to the conclusions of the court. The court cannot simply say that
judgment is rendered in favor of X and against Y and just leave it at that without any justification whatsoever for its
action. The losing party is entitled to know why he lost, so he may appeal to a higher court, if permitted, should he
believe that the decision should be reversed. A decision that does not clearly and distinctly state the facts and the
law on which it is based leaves the parties in the dark as to how it was reached and is especially prejudicial to the
losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal.
Here, the decision of the RTC justified the grant of actual and moral damages, and attorney’s fees in the following
terse manner, viz:
xxx The Court is not unmindful that due to defendants’ unjustified refusal to pay their outstanding obligation to
plaintiff, the same suffered losses and incurred expenses as he was forced to re-mortgage his house and lot located
in Quezon City to Metrobank (Exh. "CC") and BPI Bank just to pay its monetary obligations in the form of interest
and penalties incurred in the course of the construction of the subject project.109
The statement that "due to defendants’ unjustified refusal to pay their outstanding obligation to plaintiff, the same
suffered losses and incurred expenses as he was forced to re-mortgage his house and lot located in Quezon City to
Metrobank (Exh. "CC") and BPI Bank just to pay its monetary obligations in the form of interest and penalties
incurred in the course of the construction of the subject project" was only a conclusion of fact and law that did not
comply with the constitutional and statutory prescription. The statement specified no detailed expenses or losses
constituting the ₱ 5,716,729.00 actual damages sustained by Stern Builders in relation to the construction project or
to other pecuniary hardships. The omission of such expenses or losses directly indicated that Stern Builders did not
prove them at all, which then contravened Article 2199, Civil Code, the statutory basis for the award of actual
damages, which entitled a person to an adequate compensation only for such pecuniary loss suffered by him as he
has duly proved. As such, the actual damages allowed by the RTC, being bereft of factual support, were speculative
and whimsical. Without the clear and distinct findings of fact and law, the award amounted only to an ipse dixit on
the part of the RTC,110 and did not attain finality.
There was also no clear and distinct statement of the factual and legal support for the award of moral damages in
the substantial amount of ₱ 10,000,000.00. The award was thus also speculative and whimsical. Like the actual
damages, the moral damages constituted another judicial ipse dixit, the inevitable consequence of which was to
render the award of moral damages incapable of attaining finality. In addition, the grant of moral damages in that
manner contravened the law that permitted the recovery of moral damages as the means to assuage "physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury."111 The contravention of the law was manifest considering that Stern Builders, as an
artificial person, was incapable of experiencing pain and moral sufferings.112 Assuming that in granting the
substantial amount of ₱ 10,000,000.00 as moral damages, the RTC might have had in mind that dela Cruz had
himself suffered mental anguish and anxiety. If that was the case, then the RTC obviously disregarded his separate
and distinct personality from that of Stern Builders.113 Moreover, his moral and emotional sufferings as the President
of Stern Builders were not the sufferings of Stern Builders. Lastly, the RTC violated the basic principle that moral
damages were not intended to enrich the plaintiff at the expense of the defendant, but to restore the plaintiff to his
status quo ante as much as possible. Taken together, therefore, all these considerations exposed the substantial
amount of ₱ 10,000,000.00 allowed as moral damages not only to be factually baseless and legally indefensible, but
also to be unconscionable, inequitable and unreasonable.
Like the actual and moral damages, the ₱ 150,000.00, plus ₱ 1,500.00 per appearance, granted as attorney’s fees
were factually unwarranted and devoid of legal basis. The general rule is that a successful litigant cannot recover
attorney’s fees as part of the damages to be assessed against the losing party because of the policy that no
premium should be placed on the right to litigate.114 Prior to the effectivity of the present Civil Code, indeed, such
fees could be recovered only when there was a stipulation to that effect. It was only under the present Civil Code
that the right to collect attorney’s fees in the cases mentioned in Article 2208115 of the Civil Code came to be
recognized.116 Nonetheless, with attorney’s fees being allowed in the concept of actual damages,117 their amounts
must be factually and legally justified in the body of the decision and not stated for the first time in the decretal
portion.118 Stating the amounts only in the dispositive portion of the judgment is not enough; 119 a rendition of the
factual and legal justifications for them must also be laid out in the body of the decision.120
That the attorney’s fees granted to the private respondents did not satisfy the foregoing requirement suffices for the
Court to undo them.121 The grant was ineffectual for being contrary to law and public policy, it being clear that the
express findings of fact and law were intended to bring the case within the exception and thereby justify the award of
the attorney’s fees. Devoid of such express findings, the award was a conclusion without a premise, its basis being
improperly left to speculation and conjecture.122
Nonetheless, the absence of findings of fact and of any statement of the law and jurisprudence on which the awards
of actual and moral damages, as well as of attorney’s fees, were based was a fatal flaw that invalidated the decision
of the RTC only as to such awards. As the Court declared in Velarde v. Social Justice Society,123 the failure to
comply with the constitutional requirement for a clear and distinct statement of the supporting facts and law "is a
grave abuse of discretion amounting to lack or excess of jurisdiction" and that "(d)ecisions or orders issued in
careless disregard of the constitutional mandate are a patent nullity and must be struck down as void."124 The other
item granted by the RTC (i.e., ₱ 503,462.74) shall stand, subject to the action of the COA as stated herein.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS ASIDE the decision
of the Court of Appeals under review; ANNULS the orders for the garnishment of the funds of the University of the
Philippines and for the release of the garnished amount to Stern Builders Corporation and Servillano dela Cruz;
and DELETES from the decision of the Regional Trial Court dated November 28, 2001 for being void only the
awards of actual damages of ₱ 5,716,729.00, moral damages of ₱ 10,000,000.00, and attorney's fees of ₱
150,000.00, plus ₱ 1,500.00 per appearance, in favor of Stern Builders Corporation and Servillano dela Cruz.
The Court ORDERS Stem Builders Corporation and Servillano dela Cruz to redeposit the amount of ₱
16,370,191.74 within 10 days from receipt of this decision.
Costs of suit to be paid by the private respondents.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice

Supreme Court Rules Former President Marcos Unqualified for Burial at Heroes' Cemetery

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Supreme Court Rules Former President Marcos Unqualified for Burial at Heroes' Cemetery

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EN BANC

G.R. No. 225973 - SATURNINO C. OCAMPO, et al., Petitioners v.

G.R. No. 226097 - LORETTA ANN PARGAS-ROSALES, et al.,

G.R. No. 226116 - HEHERSON T. ALVAREZ, et al., Petitioners v.

G.R. No. 226117 - ZAIRA PATRICIA B. BANIAGA, et al., Petitioners

G.R. No. 226120 - ALGAMAR A. LATIPH, et al., Petitioners v.

G.R. No. 226294 - LEILA M. DE LIMA, in her capacity as Senator of

The LNMB was formerly known as the Republic Memorial Cemetery.

On 11 September 2000, Acting Armed Forces of the Philippines

Under AFPR G 161-375, the deceased persons who are qualified to be

AFPR G 161-375 also enumerates those not qualified to be interred

a. Personnel who were dishonorably separated/reverted/ discharged

In a Memorandum dated 7 August 2016, the Department of National

The DND Memorandum resulted in the filing of these petitions, which

Marcos is disqualified from being interred at the LNMB

Assuming that Marcos was qualified to be interred at the LNMB as a

AFPR G 161-375, which respondents rely on to justify the interment

Dishonorable discharge from office

In Marcos v. Manglapus, 2 the Court described Marcos as "a dictator

258 Phil. 479 (1989).

is now referred to as the People Power Revolution. This is the strongest

As the removal of Marcos from the Presidency is no longer within the

Respondents argue that because Marcos was not dishonorably

Second, even assuming that Circular 17 can be given retroactive

Circular 17, a mere administrative issuance of a department secretary,

Equal Protection Clause

The respondents assert that the disqualifications under AFPR G 161-

The disqualifications prescribed under AFPR G 161-375 are

However, to submit to respondents' view that the disqualifications

Respondents' view will discriminate against military personnel who

The term "personnel" is not defined anywhere in Circular 17 and thus,

word "military" to define personnel, while for other provisions in the

If as respondents argue, the disqualifications should apply only to

To be valid, a classification must be reasonable and based on real and

In this case, however, there is no substantial distinction between the

In Central Bank Employees Association, Inc. v. Bangko Sentral ng

The disparity of treatment between BSP rank-and-file and the

privileges conferred and liabilities enforced. Favoritism and undue

To sustain respondents' view would give rise to an absurd situation

Marcos' interment at the LNMB is contrary to public policy

Jurisprudence defines public policy as "that principle of the law which

The Constitution grants the Legislative branch the power to enact

Congress, by enacting Republic Act No. 10368 or "The Human Rights

The legislative declarations must be implemented by the Executive

Finally, government funds or property shall be spent or used solely for

ACCORDINGLY, I vote to GRANT the petitions in G.R. Nos.

Republic of the Philippines

G.R. No. 204819 April 8, 2014

G.R. No. 204934

G.R. No. 204957

G.R. No. 204988

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,

G.R. No. 205043

G.R. No. 205138

G.R. No. 205478

G.R. No. 205491

G.R. No. 205720

G.R. No. 206355

OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH,

G.R. No. 207111

G.R. No. 207172

G.R. No. 207563