IBP Journal Vol.35 - No.1 - 2010

The IBP Journal
I N T E G R A T E D B A R O F T H E P H I L I P P I N E S
Board of Editors
ROAN I. LIBARIOS
Editor-in-Chief
EDUARDO A. LABITAG
Managing Editor
DANILO L. CONCEPCION
FLORIN T. HILBAY
JAIME G. HOFILEA
MARIO C.V. JALANDONI
CONCEPCION L. JARDELEZA
NASSER A. MAROHOMSALIC
OSCAR G. RARO
CARMELO V. SISON
AMADO D. VALDEZ
OLIVER B. SAN ANTONIO
VINCENT PEPITO F. YAMBAO, JR.
Associate Editors
VICMUND Q. CAMACHO
VIVIAN C. CAPIZNON EUMIR C. LAMBINO
Staff Layout/Design
VOLUME 35 NUMBER 1 (AUGUST 2010)
CONTENTS
Philippine Treaty Law and Practice
J. Eduardo Malaya and Maria Antonina Mendoza-Oblena ....................... 1
An Essay on the Incorporation Clause of the
Constitution as a Juridical Enigma
Merlin M. Magallona.................................................................................... 18
Defining Regulatory Spaces: Precautionary Principles,
Regulatory Diversity, and the SPS Treaty of the WTO
Agreement
Marvic M.V.F. Leonen ................................................................................... 30
Revised Code of Corporate Governance:
A Reactionary Approach
Cesar L. Villanueva ....................................................................................... 40
Symbolic Speech in the Workplace
Comments on NUWHRAIN v. Court of Appeals
Florin Ternal Hilbay...................................................................................... 63
The Legal Regime Governing
the Export of Filipino Workers
Patricia R.P. Salvador Daway ..................................................................... 81
Global Climate Change and Recent Developments
in Philippine Environmental Law
Myrna S. Feliciano ........................................................................................ 93
An Environmental Writ:
The Philippines Avatar
Francis N. Tolentino ..................................................................................... 117
Revisiting the Philippine Educational System
for Everyones Ref lection
Rustico T. De Belen...................................................................................... 140
The IBP JOURNAL (ISSN 0118-9247) is an official publication
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SYNOPSIS
(The Articles in this Issue)
For this issue, the IBP Journal presents an eclectic selection of articles that
presents both traditional and non-traditional analyses of important legal and
constitutional issues.
In Philippine Treaty Law and Practice, J. Eduardo Malaya and Maria
Antonina Mendoza-Oblena trace the Philippines foreign policy objectives and
expound on the various legal instrumentalities and processes by which the country
enters into international agreements and obligations.
Merlin M. Magallona (An Essay on the Incorporation Clause of the Constitution as
Juridical Enigma) discusses the Incorporation Clause enigma under the Philippine
Constitution, stating that the purpose of the Clause as shown by jurisprudence is to
make international law principles binding on the Philippines. In the same way, however,
this function is needless because even without the Incorporation Clause under the
doctrine of incorporation, the Philippines would still be bound by these principles.
Magallona then goes on to discuss hierarchies of norms under international law,
differentiating between jus cogens norms, erga omnes obligations, and obligations under
the UN Charter.
Marvic M.V.F. Leonens Defining Regulatory Spaces: Precautionary Principles,
Regulatory Diversity and the SPS Treaty of the WTO Agreement analyzes the meaning and
elements of the Precautionary Principle and its application to international law
instruments such as the World Trade Organization Agreement. In various decided
cases, Leonen credits the WTO Appellate Body for contributing to the clarification
of the precautionary principle.
Cesar L. Villanueva in Revised Code of Corporate Governance: A Reactionary
Approach analyzes the Revised Code of Corporate Governance vis--vis the older
SEC Code of Corporate Governance and laments that what stand out from the
provisions of the Revised CG Code are not what new cutting-edge concepts were
introduced, but rather what seminal provisions have been taken out from the
provisions of the original SEC Code. Villanueva critiques how the new Code has
seemingly abandoned the Stakeholder Theory which was established by the older Code,
though the principle can be seen in other sets of rules of other agencies.
In Symbolic Speech In The Workplace: Comments on NUWHRAIN v. Court of Appeals,
Florin Ternal Hilbay traces the modern legal history of free speech and the
relationship between labor and capital, and examines the Supreme Courts decision
in NUWRAIN v. Court of Appeals, which involved a labor dispute between a hotel
chain and its workers. He ends by posing a question: How should the courts draw
the line between protected and unprotected speech in the workplace in the context
of a contentious collective bargaining negotiation?
Patricia R.P. Salvador Daway in The Legal Regime Governing The Export of
Filipino Workers outlines the background of the labor situation in the country, provides
statistics on Overseas Filipino Workers (OFWs), and explains why millions of Filipinos
seek work abroad. She enumerates the statues and agencies relating to labor and
concludes that the problems facing OFWs are both in the national and international
levels.
In their respective articles, Myrna S. Feliciano (Global Climate Change and
Recent Developments in Philippine Environmental Law) and Francis N. Tolentino (An
Environmental Writ: The Philippines Avatar) both discuss continuing challenges on the
environment and the legal responses to environmental abuse and degradation.
Feliciano details the numerous laws and government agencies involved in
environmental protection. The judiciary has also not been left behind in crafting
initiatives and regulations on the issue, but Feliciano concludes, While the Philippines
acts fast when it comes to signing international conventions and enacting laws to
protect the environment, sadly, these measures are seldom enforced.
Tolentino meanwhile focuses on the role of the judiciary in addressing
environmental concerns. He refers to a Writ of Gaia which will be a purely Filipino
invention. The writ He states, The promise of a Writ of Gaia and the adoption of
the doctrine of continuing mandamus in the Philippine legal arena represent efforts
to turn soft law into hard.
Lastly, in Revisiting the Philippine Educational System for Everyones Reflection,
Rustico de Belen makes a presentation of education principles and trends from
Filipino pre-history to the present. He stressed the need for education reform based
on strong legal foundations.
1 VOLUME 35 NUMBER 1 (AUGUST 2010)
DEFINING REGULATORY SPACES:
Precautionary Principles, Regulatory Diversity
and the SPS Treaty of the WTO Agreement
Philippine Treaty Law
and Practice
J. Eduardo Malaya
and Maria Antonina Mendoza-Oblena*
In the book The Idea of Law, Professor Dennis Lloyd observed, Every rule of
international law imposes a legal fetter on national states in the international sphere,
for this is the very sense and meaning of an international legal order.
1
In a globalized world, nation-states are aptly described as independent within
their respective borders but interdependent outside. The benefits of interaction and
cooperation with other countries are generally beyond dispute. In the field of
economics, for instance, a party raises his welfare much faster if he specializes in
making a product and trades with another who makes another product than if the
former makes those two products himself, as expounded by the principle of
comparative advantage.
The Philippines has interacted and cooperated with neighboring countries and
the rest of the international community through the decades, and as of this writing,
has concluded some 1,660 agreements with them since 1946.
Immense opportunities are made possible by cooperation and exchanges with
the international community, through the medium of agreements and other
arrangements. For instance, entrepreneurs, exporters and other businesspersons
can benefit from accords on trade access, investment promotion and protection, and
avoidance of double taxation. Farmers, fisher folks and others may avail of foreign
technical and development assistance. Students and the youth can tap educational
and cultural exchange programs with other countries and international organizations.
From a larger perspective, a well-informed understanding of Philippine foreign
policy and the countrys rights, duties and commitments is best derived from an
analysis of the treaties and other international agreements it has concluded.
* J. Eduardo Malaya is Assistant Secretary for Legal Affairs of the Philippine Department of Foreign Affairs (DFA)
and concurrently DFA Spokesman. He was the countrys Alternate Representative to the High-Level Legal
Experts Group on matters arising from the ASEAN Charter (HLEG) in 2008-2009, and served as an adviser
to the Philippine government panel for the peace negotiations with the Moro Islamic Liberation Front in 2009-
2010. A career foreign service officer with the rank of Chief of Mission Class II, he has economics (cum laude)
and law degrees from the University of the Philippines. Maria Antonina Mendoza-Oblena is DFA Director for
Treaties, and in 2009-2010, was a member of the Philippine HLEG delegation. A career foreign service officer,
she has Bachelor of Music degrees in piano and music education (cum laude) from the University of Santo
Tomas and a Juris Doctor from the Ateneo de Manila University.
This article is adapted from the introductory chapter in the book Philippine Treaties Index, 1946 - 2010,
published by the Foreign Service Institute in June 2010.
1 Dennis Lloyd, The Idea of Law (Reading, UK: Cox and Wyman Ltd, 1964), p 190.
J. Eduardo Malaya and Maria Antonina Mendoza-Oblena
2 IBP JOURNAL
I. Philippine foreign policy objectives
Philippine foreign policy is oriented towards the further enhancement of
national security, the pursuit of economic diplomacy and the extension of full consular
services to Filipino nationals wherever they may be. These three strands are called
the Three Pillars of Philippine Foreign Policy.
From February 2001 to the first half of 2010, during the presidency of Gloria
Macapagal-Arroyo, the Philippines concluded some 393 agreements, notably eleven
on the promotion and protection of overseas Filipino workers, ten tourism promotion
agreements, nine investment promotion accords, eight health cooperation accords,
six environmental conservation and protection agreements, and five on social security
benefits. This record reflects the priority given these areas by the administration,
especially on the welfare of overseas Filipinos, economic promotion and environment
protection.
Among the agreements are a number of free trade agreements entered by the
Philippines and its ASEAN partners with the economies of major neighboring
countries, the Philippine-Japan Economic Partnership Agreement, the Stockholm
Convention on Persistent Organic Pollutants, arrangements for the headquarters of
the ASEAN Centre for Biodiversity and the Worldfish Centre in the Philippines,
and the accessions to the Convention against Torture and the Protocol Additional
to the Geneva Conventions of 12 August 1949.
Similar foreign policy priorities will most likely be pursued by the administration
of President Benigno S. Aquino III, with added emphasis on human rights,
international humanitarian law and anti-corruption.
This study is a modest attempt at documenting the treaty law and practice at
the Office of Legal Affairs (OLA) of the Philippine Department of Foreign Affairs
(DFA). As will be discussed below, OLA is the official repository of the treaties
entered into by the country. The office also provides legal guidance and support to
the DFA and other departments and agencies of the Philippine government in the
negotiation, signing and ratification of international agreements.
This paper will examine the provisions of the Constitution which have relevance
to treaty-making, and discuss the definition and coverage of the term treaty, the
capacity of states to enter into treaties, both at the international and domestic law
levels, and the categories of international agreements, also in the international and
domestic law levels.
These are followed by an analysis of the distinction between a Memorandum
of Agreement (MOA) and a Memorandum of Understanding (MOU) in the
international law sphere, and that between a treaty and an executive agreement in
the domestic law sphere.
VOLUME 35 NUMBER 1 (AUGUST 2010) 3
The study concludes with an examination of the steps in the treaty-making
process, from the negotiation phase to a signed agreements entry into force.
II. Parameters in the formulation and conduct of foreign
policy
The substantive content of Philippine foreign policy is anchored on the
Constitution, specifically the precepts that in the countrys relations with other states
the paramount consideration shall be national sovereignty, territorial integrity,
national interest, and the right to self-determination, and that the country adheres
to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations. Thus:
Article II, Section 2. The Philippines renounces was an instrument of
national policy, adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.
Article II, Section 7. The State shall pursue an independent foreign policy.
In its relations with other states the paramount consideration shall be
national sovereignty, territorial integrity, national interest, and the right
to self-determination.
The above is supplemented by the foreign policy priorities of the President of
the Philippines, as the chief architect of foreign policy, and his Secretary of Foreign
Affairs.
On the other hand, the procedural dimension of foreign policy-making, which
is the ambit of Philippine treaty law and practice, is based on the following:
(a) The Philippine Constitution, specially Article VII, Section 21 which states, No
treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate;
(b) The ruling of the Supreme Court of the Philippines in Commissioner of
Customs vs. Eastern Sea Trading,
2
which made a distinction between treaties
and executive agreements, the latter requiring the ratification by the President
3
in
order to take effect, and related jurisprudence; and
(c) Executive Order No. 459, series of 1997, which sets the guidelines in
the negotiation, conclusion and ratification of international agreements.
2 G.R. No. L-14279 (1961).
3 Executive Order No. 459, s. 1997, Section 7.
4 IBP JOURNAL
III. Definition and Coverage of Treaties
The term treaty is used in this study as defined in the Vienna Convention on
the Law of Treaties,
4
Article 2 (1) of which states that:
treaty means an international agreement concluded between States in
written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever
its particular designation.
Under this definition, a treaty has the following elements:
5
1. An international agreement. To be a treaty, an agreement
has to have an international character.
2. Concluded between states. A treaty is between states,
governments or their agencies or instrumentalities acting
on behalf of states. A treaty may be concluded by heads
of states or governments, their ministries or other state
agencies.
6
An agreement or contract between international
or multinational companies, or between a state and such
a company, is not a treaty. This is true, even when such
an agreement provides that it shall be interpreted in whole
or in part by reference to rules of international law.
7
3. In written form.
4. Governed by international law. This refers to the element
of intent to create obligations under international law.
If there is no such intention, the instrument is not a
treaty.
8
5. Whether embodied in a single instrument or in two or
more related instruments. Treaties can also be drawn
up in less formal ways, such as through the exchange of
notes.
The Vienna Convention definition delimited treaties as between states.
9
However, states may also enter into treaties with international organizations. The
latter class of agreements are governed by another set of rules, the Vienna Convention
on the Law of Treaties between States and International Organizations or between
International Organizations.
10
4 Adopted on 22 May 1969 and entered into force on 27 January 1980.
5 Anthony Aust, Modern Treaty Law and Practice (2000), pp. 14-25.
6 Ibid., p. 16.
7 Ibid., p. 15.
8 Ibid., p. 17.
9 Ibid., p. 14.
10 Done in Vienna, Austria on 21 March 1986; not yet in force.
IV. Capacity to enter into treaties
Every State possesses capacity to conclude treaties, according to Article 6 of
the Vienna Convention on the Law of Treaties.
In the Philippines, the President, as Chief Executive and head of state, has the
power to conduct foreign relations. As chief architect of Philippine foreign policy, he
has the power to make treaties. As described by Senator Arturo Tolentino,
The President is the sole spokesman of the Government in foreign relations...
He is the only official of this Government whose positions and views in our dealings
with other countries are taken by other Governments as those of the Philippine
Government. His is the only voice which other Governments will take as expressing
the official stand of our Government. In short, he is the official channel of
communication to which other Governments will listen to ascertain the position and
views of the Philippine Government in our relations with them.
11
V. Nature of international agreements
12
In examining an international agreement, it is essential to identify the nature
of the agreement in international law and domestic law. Under international law, the
agreement may be in the form of a treaty or the less formal Memorandum of
Agreement, which creates legally-binding rights and obligations on the parties, or a
Memorandum of Understanding, which is a non-legally binding instrument.
13
Additionally, the agreement has to be examined whether it should be treated
as a treaty in the context of Article VII, Section 21 of the Philippine Constitution,
or an executive agreement, which only requires presidential ratification in order to
enter in force and effect.
A. In International Law
Under international law, the negotiation, conclusion and ratification of treaties
is governed by the Vienna Convention on the Law of Treaties and customary
international law.
11 Arturo Tolentino, The President and the Batasan on Foreign Affairs, in The Powers of the Philippine President, as quoted
by J. Eduardo Malaya, Conflict and Cooperation in the Crafting and Conduct of Foreign Policy, Philippine Law Journal,
Vol. 84, p. 561.
12 OLA Office Order No. 02-07 - Guidelines in Reviewing International Agreements, in J. Eduardo Malaya, ed., Manual
on Treaties Review (DFA-OLA, January 2008), p. 1.
13 Aust, p. 18.
6 IBP JOURNAL
Treaty/Memorandum of Agreement vs. Memorandum of
Understanding. In international law practice, the treaty/Memorandum of
Agreement (MOA) format is used when the agreement describes the specific
responsibilities of, or actions to be undertaken by the parties with the view to the
accomplishment of their goals,
14
and the availability of a recourse to enforcement
action in case of non-compliance with its terms.
In contrast, the Memorandum of Understanding (MOU) format is used when
the participants have agreed on general principles of cooperation, and though the
parties are bound by its terms, pursuant to the principle of pacta sunt servanda, the
understanding is not intended to be legally enforceable by one participant against
the other. An MOU may list the obligations of both sides, but performance and
compliance are on a best-effort basis.
Rather than creating international legal rights and obligations, the intention
of the participants is to record mutual understandings as to how they will conduct
themselves. Thus, MOUs often contain broad goals and plans shared by the
participants. Its terms are on a best-effort basis and are not legally enforceable.
The MOU format is useful in certain situations. It is preferred for reasons of
confidentiality and ease and convenience in concluding them. It is often used when
dealing with sensitive defense and national security matters or to protect delicate
commercial information, such as those accompanying air services agreements.
15
Since
these are non-legally binding, there is also no international requirement to publish
them.
MOUs are usually effective upon their signature.
In Philippine treaty practice, MOUs in the nature of declarations, implementing
arrangements, letter of intent, joint communiqu and joint statement do not require
presidential ratification to become effective. Nonetheless, MOUs whose texts denote
an intent to be legally binding will require presidential ratification.
16
The title of the instrument does not, in itself, determine the nature or status
of the instrument. What is determinative is whether the negotiating states intended
the instrument to be legally-binding or not. It is only by examining the terms of an
instrument can one determine its status.
17
The respective terminologies in treaty/MOA and MOU are different, notably
the use of the word agree in treaty/MOA and decide, accept, or approve in
MOU. Parties in treaty/MOA are referred to as Participants in MOU.
14 OLA Memorandum dated 17 December 2007 - Treaty MOA and MOU Terminologies, in Malaya, Manual on
Treaties Review, pp. 11-12.
15 Aust, pp. 34-39.
16 Ibid.
17 Aust, p. 20.
Negotiators and drafters of agreements should carefully choose the words
they use, to properly indicate the intent to conclude a legally binding or non-legally
binding instrument. OLA Office Circular dated 17 December 2007 lists these differing
terminologies.
President Gloria Macapagal Arroyo expressed a preference for MOA over
MOU
18
as the agreed terms can clearly be relied upon. However, it need not be so
at all times, particularly if the Philippines is not the one proposing the instrument,
and also when it is necessary to maintain some flexibility in its implementation.
Exchange of Notes. According to the Vienna Convention, a treaty may be
embodied in a single instrument or in two or more related instruments
19
This
phrase recognizes that the classic form for a treaty a single instrument has been
joined by those drawn in less formal ways, such as exchanges of notes.
In an exchange of diplomatic notes, a country transmits to another country an
initiating Note which contains the elements of a proposed agreement. If the proposed
terms are acceptable, the recipient country may transmit a reply Note conveying its
consent to be bound by those terms. The agreement takes effect on the date of the
reply Note.
Many exchanges of notes are in the nature of MOU, but these could also
constitute legally-binding treaty/MOA depending upon their substance. Due care
has to be exercised.
B. In Philippine Domestic Law
The 1987 Constitution, Executive Order No. 459, s. 1997, and jurisprudence
govern the subject in domestic law.
The distinction drawn between a treaty and an executive agreement is based on the cases
USAFFE Veterans v. Treasurer of the Philippines, et al
20
(1959), and Commissioner
of Customs vs. Eastern Sea Trading (1961), where the Supreme Court made a distinction
between a treaty as referred to in the Constitution and another class of agreements called executive
agreement. According to the Court,
International agreements involving political issues or changes of national policy and those
involving international arrangements of a permanent character usually take the form of
treaties. But international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a more or
less temporary nature usually take the form of executive agreements.
18 Ibid.
19 Vienna Convention on the Law of Treaties, Article 2 (1).
20 105 Phil. 1030 (1959).
8 IBP JOURNAL
The above ruling has been observed through the years, and the practice became
codified when Executive Order No. 459, series of 1997 was issued by President
Fidel V. Ramos.
21
According to the executive order, the Office of Legal Affairs, on behalf of the
DFA, determines whether an agreement is an executive agreement or treaty. Thus:
Section 9. The Department of Foreign Affairs shall determine whether an agreement is an
executive agreement or a treaty.
As noted by Senator Miriam Defensor-Santiago, Chairperson of the Senate
Committee on Foreign Relations,
it is the foreign affairs department which determines whether an agreement is an executive
agreement on one hand; or a treaty on the other hand. This distinction is important, because
while it is claimed that an executive agreement needs only ratification by the President, a
treaty needs concurrence by the Senate. This distinction drawn between an executive agreement
and a treaty is based on the 1961 case of Commissioner of Customs v. Eastern Sea Trading.
22
Treaty vs. Executive Agreement. Executive Order No. 459 defines
treaties as international agreements entered into by the Philippines which require
legislative concurrence after executive ratification, while executive agreements
are similar to treaties except that they do not require legislative concurrence.
23
As noted in the Eastern Sea Trading ruling, a treaty would involve political issues
or changes of national policy, or arrangements of permanent character.
24
An agreement
which would conflict with existing laws and thus require amendment of said laws
should be considered as a treaty requiring Senate concurrence. Those which may be
in conflict with established national policy and require a change of said policy shall
likewise be deemed as requiring Senate concurrence. Agreements which would require
the enactment of a law for its implementation will also require Senate concurrence.
Examples of agreements treated as treaties are those that provide tax
exemptions, because only Congress may grant such exemption
25
; grant privileges
and immunities to individuals or international organizations, except diplomatic
immunities and privileges for United Nations agencies and other international
organizations which are by now the norm; provide direct allocation of funds, as this
prerogative is exclusively lodged with Congress; and those that criminalize certain
conduct, as only the legislature may pass a penal legislation.
21 See also Gonzalez v Hechanova, 9 SCRA 243; World Health Organization v. Hon. Aquino, 48 SCRA 242; and
Joaquin Bernas, S.J., Foreign Relations in Constitutional Law (1995), pp 112-115.
22 Senator Miriam Defensor-Santiago, Procedure for Senate Concurrence to Treaties (2007), p. 2.
23 Executive Order No. 459, section 2 (b) and (c).
24 Commissioner of Customs v. Eastern Sea Trading (1961).
25 Tax exemptions may be made only under the authority of Congress in accordance with Article VI, Section 28
(2) of the Constitution and the Customs and Tariffs Code.
To be likewise treated as requiring Senate concurrence are those which may
contravene established constitutional or national policies, such as the no imposition
of the death penalty, no establishment of foreign military bases,
26
no resort to third-
party tribunal in case of disputes, policy of freedom from nuclear weapons in
Philippine territory,
27
the One-China policy, and the archipelagic doctrine with respect
to the countrys maritime territory.
28
On the other hand, executive agreements are those that which embody
adjustment of details carrying out well-established national policies and tradition,
involving arrangements of a more or less temporary nature.
29
The distinction between treaties and executive agreements has no bearing in
the international law sphere. Both are covered by the term treaty as defined in the
Vienna Convention and thus equally binding, unless the instrument is in the nature
of a MOU, as noted earlier.
The following categories of agreements have been treated as executive
agreements: air services agreement, cultural agreement, defense cooperation
agreement, mutual logistics support agreement, scientific and technological
cooperation agreement, economic cooperation agreement, agreement on gainful
employment of spouses of members of diplomatic and consular missions; tourism
cooperation agreement, investment promotion and protection agreement, labor
promotion and protection agreement, maritime agreement, waiver of visa
requirement agreement, and trade cooperation/facilitation agreements, such as those
among ASEAN countries.
30
In contrast, the following have been treated as treaties which require
presidential ratification and Senate concurrence:
a) Status of forces agreement/Visiting forces agreement
31
b) Comprehensive free trade agreement/economic partnership
agreement, which go beyond what the President is allowed to
undertake unilaterally under Article VI, Section 28(2) of the
Constitution and the Customs and Tariff Code
c) Agreement on the avoidance of double taxation, since tax exemptions
can be made only under the authority of Congress
32
26 Section 25, Article XVIII of the Constitution.
27 Section 8, Article II of the Constitution.
28 OLA Office Order No. 02-07, in Malaya, ed., Manual on Treaties Review, p. 2.
29 See Commissioner of Customs ruling. In U.S. jurisprudence, executive agreements fall under two categories: (1)
agreements made purely as executive acts affecting external relations with or without legislative authorization,
which may be called presidential agreement, and (2) agreements entered into pursuance of acts of Congress,
which are designated as Congressional-Executive Agreement (Hackworth, International Law, Vol. 1, p. 380).
30 OLA Office Order No. 1 2007 dated 22 May 2007, in Malaya, Manual on Treaties Review), p. 13.
31 Section 25, Article XVIII of the Constitution.
32 See Article VI, Section 28 (4) of the Constitution.
1 0 IBP JOURNAL
d) Agreement which establishes the headquarters of an international
organization, with concomitant grant of immunities to the organization
and its officials
e) Agreement on the transfer of sentenced persons, since the exercise
of criminal jurisdiction is based on the territoriality principle; and
f) Other agreements, especially multilateral conventions, involving political
issues or changes of national policy or involve international
arrangements of a permanent character, pursuant to the Commission of
Customs ruling.
33
Foreign Loan. There are three broad categories of agreements which do not
fall within the realm of the Vienna Convention on the Law of Treaties and Executive
Order No. 459, namely foreign loans, grants and commercial contract. These are
governed by domestic law.
The President is authorized under Article VII, Section 20 of the Constitution
to contract or guarantee foreign loans, with the prior concurrence of the Monetary
Board. Thus:
Section 20. The President may contract or guarantee foreign loans on behalf
of the Republic of the Philippines with the prior concurrence of the Monetary
Board, and subject to such limitations as may be provided by law. The Monetary
Board shall, within thirty days from the end of every quarter of the calendar
year, submit to the Congress a complete report of its decision on applications for
loans to be contracted or guaranteed by the Government or government-owned
and controlled corporations which would have the effect of increasing the
foreign debt, and containing other matters as may be provided by law.
Foreign loans are generally entered into by the Department of Finance. Other
Departments, including the DFA, may conclude them only with the endorsement
from the finance department. As the Constitution prescribes a distinct negotiation
and approval process, foreign loan agreements do not undergo the usual treaty
ratification procedure.
Grant/Official Development Assistance. The procedure for the conclusion
of foreign grants and official development assistance (ODA) is governed by The Official
Development Act of 1996 (R.A. No. 8182). These agreements require endorsement from
the National Economic Development Authority
34
as these have to be in line with
national development plans and particularly when there are requirements for local
counterpart funding.
33 OLA Office Order No. 1 2007.
34 Official Development Act of 1996 (R.A, 8182).
Commercial or Private Contract. An agreement between the Government
or any of its subdivisions/agencies and a private entity or an entity which is not a
subject of international law is a commercial or ordinary contract.
35
Agreements of
this type are not within the realm of the Vienna Convention on the Law of Treaties.
In the authoritative book Modern Treaty Law and Practice, Anthony Aust describes
the following as agreements which are governed by domestic law even if concluded
between states:
States can also contract with each other under domestic law. They may do so if the subject
matter is exclusively commercial, such as the purchase of commodities in bulk If a state
leases land from another state for an embassy there will usually be an instrument under
domestic law, such as a lease, though this may be granted pursuant to treaty Treaties
concerning loans may provide that the contractual arrangements for the loans shall be
governed by the law of the lender state.
36
VI. Procedure in the Negotiation and Ratification of Agreements
37
A. Issuance of Full Powers or special authority
Executive Order No. 459
38
provides the guidelines in the negotiation of
international agreements and their ratification. As a matter of policy, the negotiation
of treaties and executive agreements shall be coordinated with, and made only with
the participation of the Department of Foreign Affairs (DFA).
39
Prior to the negotiation of a proposed international agreement, authorization
should first be secured from the President by the lead government department or
agency through the Secretary of Foreign Affairs. The DFA geographic office which
covers the area or subject matter
40
is the conduit for securing the authorization.
The request for authorization shall be in writing, proposing the composition
of the Philippine negotiating delegation and recommending the range of positions
to be taken by the delegation.
41
The negotiating positions are generally classified as
confidential. The composition of any Philippine panel and the designation of its
chairperson shall be made in coordination with the DFA.
42
35 Aust, p. 16.
36 Ibid., p. 24.
37 OLA Circular No. 01-07.
38 Issued November 25, 1997 by President Fidel V. Ramos.
39 Executive Order No. 459, section 1.
40 These are principally the Offices of American Affairs, Asian and Pacific Affairs, European Affairs and the
Middle East and African Affairs, for bilateral agreements, and the Offices of ASEAN Affairs and the United
Nations and other International Organizations, for multilateral agreements.
41 Executive Order No. 459, section 3.
42 Ibid., Section 1.
1 2 IBP JOURNAL
For agreements requiring the concurrence of the Senate, the authorization
shall be in the form of Full Powers and formal instructions. Full Powers, as defined
in Executive Order No. 459, is the authority granted by a head of State or Government to a
delegation head enabling the latter to bind his country to the commitments made in the negotiations
to be pursued.
43
For agreements not requiring Senate concurrence, a written authorization from
the President is sufficient.
44
A special authority is generally not required for the signing of a declaration,
letter of intent, joint communiqu, joint statement and the other political documents.
Signing of other types of MOUs whose texts indicate intent to be bound should
require prior special authority.
The issuance of Full Powers or written authorization is made by the President
who may delegate this function to the Secretary of Foreign Affairs.
45
The following shall not be required Full Powers or written authorization prior
to negotiating or signing an international agreement:
46
1. The Secretary of Foreign Affairs.
2. Heads of Philippine diplomatic missions, for the purpose of adopting
the text of an agreement between the Philippines and the state to which
they are accredited.
3. Representatives accredited by the Philippines to an international
conference or to an international organization or one of its organs,
such as the Philippine Permanent Representative to the United Nations
or to ASEAN, for the purpose of adopting the text of a treaty in that
conference, organization or organ.
B. Negotiations
When an agreement is proposed by another country or international
organization for the consideration of the Philippines, or vice versa, the DFA
geographic office which is responsible for the countrys relations with the other
party, shall request the views of other relevant DFA offices and other government
agencies, by convening inter-office/agency meetings or through referrals for the
latters comments.
43 Ibid., Section 2 (d).
46 Ibid.
The lead office or agency then convenes a meeting of the members of the
negotiating panel prior to the commencement of negotiations for the purpose of
establishing the parameters of the negotiating positions.
47
No deviation from the
agreed parameters shall be made without consultations with the members of the
negotiating panel.
48
C. Signing of the Agreement
In the case Pimentel vs. Executive Secretary,
49
the Supreme Court clarified that
signing and ratification are two separate and distinct steps in the treaty-making
process:
If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and
for the purpose of symbolizing the good faith of the parties; but, significantly, it does not
indicate the final consent of the state in cases where the ratification of the treaty is required.
The document is ordinarily signed in accordance with the alternat, that is, each of the
several negotiators is allowed to sign first on the copy which he will bring home to his own
state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts
the provisions of a treaty concluded by its representatives. The purpose of ratification is to
enable the contracting states to examine the treaty more closely and to give them an opportunity
to refuse to be bound by it should they find it inimical to their interests. It is for this reason
that most treaties are made subject to the scrutiny and consent of a department of the
government other than that which negotiated them.
D. Ratification by the President
After the signing of an agreement, the DFA geographic office transmits to
OLA the original and/or certified true copy of the agreement. When transmitting
the agreement, it is accompanied by the following, in line with DFA Department
Order No. 21-99 dated 25 August 1999:
1. Certificates of concurrence of the agencies that participated in the
inter-agency consultations and the negotiations; and
2. A summary of the benefits that will accrue to the Philippines once
the agreement enters into force.
OLA then prepares the draft memorandum for the President, for the signature
of the Secretary of Foreign Affairs, recommending the ratification of the signed
agreement. If the agreement requires Senate concurrence, a draft letter-endorsement
from the President to the Senate President is enclosed.
48 Ibid.
49 G.R. No. 158088 (2005).
1 4 IBP JOURNAL
The original agreement is deposited with the Foreign Service Institutes Carlos
P. Romulo Library, which serves as the archives of these agreements and other papers.
In its Pimentel ruling, the Supreme Court stated:
Under our Constitution, the power to ratify is vested in the President, subject to the concurrence
of the Senate. The role of the Senate, however, is limited only to giving or withholding its
consent, or concurrence to the ratification. Hence, it is within the authority of the President
to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in
its behalf is a serious step that should not be taken lightly, such decision is within the
competence of the President alone, which cannot be encroached by this Court via a writ of
mandamus.
The Senate does not ratify a treaty. It concurs in the Presidents ratification of
a treaty.
50
E. Concurrence of the Senate
For international agreements that require the concurrence by the Senate of
the ratification made by the President, the latter transmits the signed treaty to the
Senate. The relevant DFA geographic office coordinates with the proponent/
implementing agency in preparing the policy papers, for the perusal of the Senate
Committee on Foreign Relations, and in presenting and justifying the agreement
during the concurrence hearings.
The policy papers should contain information about the agreement that could
address the frequently-asked questions during committee hearings, such as the nature,
objective and other highlights of the agreement, its negotiating history, and the number
of countries that have ratified the agreement, if it is multilateral in character. It shall
likewise identify the benefits and relative importance of the agreement to the country.
In the Senate, the treaty undergoes three readings, as follows:
51
The First Reading consists of reading the title of the treaty, after which the
Senate President transmits it to the Committee on Foreign Relations. The committee
has 15 members. Of the 15 members, ten seats are reserved for the majority party
and five to the minority. In practice, every committee meets once a month. The
Rules of the Senate require that notice of meeting, including the agenda, place and
time of the meeting, shall be given three days in advance to committee members.
50 Santiago, Procedure for Senate Concurrence to Treaties, p.1
51 Rules of the Senate, Rule 36, titled Concurrence in Treaties; see also Senator Miriam Defensor Santiago,
Procedure for Senate Concurrence to Treaties, p. 3.
At the committee hearing, the Secretary of Foreign Affairs or a senior DFA
official will present the treaty and recommend concurrence, to be followed by the
head or senior official of the proposing or implementing agency. Views on the
proposed treaty from concerned sectors, if any, are heard.
A committee report is then prepared. A report and its recommendation must
be approved by a majority of the regular committee members, plus the ex-officio
members. If the report is unfavorable, the proposed treaty is transmitted to the
archives of the Senate, in which case it dies a natural death. It may be recalled that
according to the Constitution, No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the Senate.
52
During the Second Reading, the Chairperson of the Senate Committee on
Foreign Relations delivers a sponsorship speech at the plenary session, to be followed
by a formal debate. As noted by Senator Santiago, Unlike a bill, a treaty is not subject to
amendment
53
The Third Reading is limited to the reading of the title of the treaty. No
treaty is considered concurred in by the Senate unless it has passed three readings
on separate days, and printed copies are distributed to the Senators three days
before its passage, except when the President certifies to the necessity of its immediate
concurrence to meet a public calamity or emergency. The treaty is then submitted to
final vote by yes and no. The votes of at least two-thirds of all the Members of the
Senate are required for concurrence to a treaty.
Accession, which is a method by which a state that is not among a treatys
original signatories becomes a party to it, follows the same ratification/concurrence
process.
F. Declaration or Reservation
It is possible for a party to a treaty to make an interpretative declaration at
the time of signature or ratification of a treaty.
A declaration is defined as follows:
A unilateral declaration, however phrased or named, made by a State or by an international
organisation whereby that State or organisation purports to clarify the meaning or scope
attributed by the declarant to the treaty or to certain of its provisions.
54
52 Article VII, Section 21.
53 Santiago, p. 5. She added: although, as in the case of the controversial Japan-Philippine Economic Partnership
Agreement, I shall recommend a conditional concurrence. See also Joaquin Bernas, S.J., Foreign Relations in
Constitutional Law (1995), p. 111: The Senate might give its concurrence but impose conditions or reservations
related to its content. In such an eventuality, renegotiations might become necessary.
54 UN Doc. A/CN.4/491/Add, 4. Paragraph 361, as quoted in Aust, Modern Treaty Law and Practice, p. 102.
1 6 IBP JOURNAL
On the other hand, the Vienna Convention defines a reservation as:
A unilateral statement, however phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the
legal effect of certain provisions of the treaty in their application to that State.
55
If the negotiating panel deems the making of a declaration or reservation as
necessary, and the agreement, which is often of the multilateral type, allow a
declaration or reservation upon signing, accession or on the deposit of the Instruments
of Ratification, then a declaration or reservation can be drafted and then made on
the signing, accession or ratification, or upon the deposit of the instrument of
ratification.
The making of a reservation or declaration may be part of the negotiating
parameters of the negotiating panel.
G. Notification after Ratification
Upon its receipt of the Instrument of Ratification (and the Senate Resolution
concurring in the ratification made by the President, if applicable), OLA notifies
the concerned offices and agencies of the date of signature of the Instrument of
Ratification as well as the date of the Senate Resolution, if applicable.
OLA transmits a Note verbale to the embassy of the other contracting State,
or the international organization, notifying the latter of the ratification of the
agreement in order to determine the date of its entry into force.
If the agreement requires that the original Instrument of Ratification be
deposited with a depositary State or international organization for the agreement to
enter into force, OLA transmits the original Instrument to the concerned DFA
geographic office. The latter makes the deposit and informs OLA of the action
taken, as well as the date of the entry into force of the agreement.
H. Entry into Force
All international agreements generally undergo the domestic legal requirements
of ratification,
56
except those that implement existing agreements and foreign loan
agreements and commercial contracts, as noted earlier.
An international agreement enters into force only upon compliance with
domestic ratification requirements.
55 Article 2 (1) (d).
56 Executive Order No. 459, Section 6 (a).
An agreement that provides that it will enter into force upon signature is
considered as entering into force provisionally. Provisional entry into force is allowed
only if it is shown that a pressing national interest will be upheld. In consultation
with concerned agencies, the DFA determines whether an international agreement
or any amendment thereto, shall be given provisional effect.
57
An international agreement, which requires the concurrence of the Senate,
may not be given provisional effectivity, in keeping with Article VII, Section 21 of
the Constitution.
This study is a modest attempt at documenting the treaty law and practice at,
and from the perspective of, the Philippine Department of Foreign Affairs.
It is hoped that the study leads to a deeper understanding and appreciation of
this dynamic field where constitutional law, public international law and foreign
policy intersect. May it lead also facilitate an adept conduct of diplomacy in pursuit
of the countrys interests in the community of nations.

57 Ibid., Section 6 (b).
1 8 IBP JOURNAL
Marvic M.V.F. Leonen
An Essay on the Incorporation
Clause of the Constitution
as a Juridical Enigma
Merlin M. Magallona*
i. Principles of International Law as Philippine Law
The Incorporation Clause of the Constitution reads in Section 2, Article II:
The Philippines [] adopts the generally accepted principles of
international law as part of the law of the land. []
It is by this provision that the Constitution incorporates a body of principles
of international law into Philippine law. Since these principles are part of the law of
the land, they are applied in domestic law as Philippine law. Intriguingly enough, if
they assume the status of Philippine law, do they cease to be international law?
The complexity of this problem has never been investigated and continues to
generate confusion in the application of these principles, without scrutiny.
Incorporation (or internalization) has given rise to the dual character of these
principles. They remain in the nature of international law operating on the
international plane governing the relations of States and other subjects of international
law. At the same time, they are a category of national law binding upon subjects of
Philippine law. The former may be referred to as objective international law and the
latter Philippine practice of international law. Their respective modalities of operation
in each legal system are not interchangeable; failure to observe this distinction
resulting from their interchangeability becomes the crux. In particular, the application
of these principles as national law in the context of international law operating on
the international plane would give rise to an anomaly in judicial reasoning, as
exemplified in the application of pacta sunt servanda. This principle of general
international law mandates that Every treaty in force is binding upon the parties to
it and must be performed by them in good faith.
1
The ponencia in Taada vs. Angara
2
invokes this principle as part of the law of the land in the Incorporation Clause, a
case in which the very constitutionality of a treaty is under attack and the Supreme
* Professorial Lecturer; Former Dean and Professor of Law, University of the Philippines College of Law.
1 As codified in Article 26 of the Vienna Convention on the Law of Treaties.
2 272 SCRA 18, at 66 (1997). This case pertains to the constitutionality of the Agreement Establishing the World
Trade Organization (WTO) and the annexed agreements.
1 9 VOLUME 35 NUMBER 1 (AUGUST 2010)
An Essay on the Incorporation Clause
of the Constitution as a Juridical Enigma
Court is called upon to exercise its review power which empowers it to strike down
a treaty as unconstitutional or invalid.
3
The generally accepted principles of international law as constitutionally
internalized derive and continue to derive their content from objective international
law. This process, over time, may create changes in the content or character of the
principles on the international plane, causing discrepancy between the same principles
in the two legal systems. Progress in the development of these principles on the
international plane may occur at a pace faster than in Philippine practice of the same
principles. On the international plane, progress is in terms of dynamics of general
practice of States; whereas, in national law, through the exercise of judicial function
by the Supreme Court. The problem of discrepancy, however, may fail to be
recognized except in the awareness of the distinction between objective international
law and Philippine practice.
A peculiar feature of the law of the Incorporation Clause is that it is placed
beyond the competence of national law to change its content nor to repeal it; a
deliberate attempt to amend it in a manner incompatible with objective international
law may alter its status as generally accepted principles of international law and,
hence, may erode away the juridical basis of its status as national law. These
consequences may be said to be the logical implications of the constitutional status
that characterizes the Incorporation Clause principles.
The heart of the enigma lies in the fundamental problem that the Incorporation
Clause is designed by the Constitution as the transformative process by which a
body of principles in objective interactive law becomes national law, but the identity
of these principles as individualized is not known. It is a serious deficiency of a
normative system to institute norms or principles as law, and in the same process
what is constituted as law is deprived of its precondition of legality, namely, the
individual identity of the principles in question, which lends it the necessary element
of enforceability and effectiveness.
[G]enerally accepted principles of international law in the Incorporation
Clause is a categorization of international legal principles for the purpose of making
them national law. Excluded from this category for this purpose are principles
which are not generally accepted. This categorization becomes a constitutional
directive to the effect that only principles within the scope of this category will be
accorded the status of national law. More important, perhaps, is that it necessarily
implies the grant of authority to identify the principles of rules that will be effectuated
as national law. In this light, obviously, the whole category generally accepted
principles of international law by itself cannot be intended to be invoked as applicable
or enforceable law in support of a claim in a legal dispute. But it is the premise or
justification for the status and application of each individualized principle if it is to
operate as national law, without which such principle will not qualify as part of the
3 See Section 5(2)(a), Article VIII of the Constitution.
2 0 IBP JOURNAL
Merlin M. Magallona
law of the land. The category is provided as a criterion for identifying the operative
rules which embody rights and duties. It makes no sense in having this category
without individualizing the principles within its scope and there is no sense having
the individual principles identified in the absence of such category. Categorization
and individualization are integral to the whole, useless each without the other.
This outlook gives clearer light to the view that the Incorporation Clause
requires the exercise of the implied authority to identify the operative rules in terms
of specific rights and duties by way of compliance with the constitutional mandate
that the generally accepted principles of international law be made part of Philippine
law. In other words, the Incorporation Clause being non-self-executory, there arises
the duty to effectuate it, which leads to its execution through the identification of
the individualized principles as thus determined as national law, and in the same
process applies them in the resolution of a legal dispute.
II. Problems in Execution of the Incorporation Clause
In the exercise of its constitutional function, the Supreme Court has identified
individual principles of international law in applying them as national law in a number
of cases, in every instance showing that it is interpreting the generally accepted
principles of international law under the Incorporation Clause. Thus, the Court in
Mejoff vs. Director of Prisons
4
applies as national law the right to life and liberty and all
other fundamental rights as applied to all human beings, proclaimed by the Universal
Declaration of Human Rights, in relation to the fact that by its Constitution (Art.
II, Sec. 3) the Philippines adopts the generally accepted principles of international
law as part of the law of the Nation.
5
In Marcos vs. Manglapus,
6
the Court says: The
right to return to ones country is not among the rights specifically guaranteed in the
Bill of Rights, which treats only of the liberty of abode and the right to travel, but it
is our well-considered view that the right to return may be considered, as a generally
accepted principle of international law and, under our Constitution, as part of the
law of the land.
7
As illustrated in these cases, the modality applied in dealing with the
Incorporation Clause is comprised of invoking the category of principles, identifying
the individualized principle and applying it. If on the whole this modality has settled
as established practice, as it does, then the identity of the national-law rules is
determined by the exercise of judicial function, from which the following problems
are:
4 90 Phil. 70 (1951).
5 As provided in the 1973 Constitution.
6 177 SCRA 668 (1959).
7 In denying the issuance of travel documents to the petitioners, the Court is apparently mindful of the restriction
to this right under the International Covenant on Civil and Political Rights, pertaining to national security and
public order. See Article 12(2) and (3) of the Covenant.
How is the date of effectivity of these rules determined? Do they take effect
simultaneously with the Incorporation Clause as part of the Constitution? If so, do
they take effect in the absence of their identity and substantive content?
If the individualized rules or principles derive the date of effectivity from the
promulgation of the Supreme Court decision in which they are identified as national
law under the Incorporation Clause, it may appear that their nature as operative
rules comes into existence only after the fact, i.e., after the situation they are intended
to govern has taken place. Necessarily, in effect, they are made to govern such a
situation by the retroactive application of the Courts decision, in contravention of
the fundamental principle of legality.
While the process of identification as a precondition for defining their nature
as national-law rules may be conveniently passed on as a normal judicial function of
interpretation, there remains the problem of constructive rule-making in which the
act of identifying what is the law is a virtual creation of rules in national law. In the
foregoing context, is the Supreme Court engaging in a judicial or legislative function?
At any rate, in the last 60 years, less than 50 principles have been declared by the
Supreme Court as within the scope of the Incorporation Clause. Mostly, however,
they are covered by obiter dicta; invariably, there is no showing that they are made to
correspond to the substantive content of general international law on the international
plane.
May Congress enact a catalogue of principles in implementation of the
Incorporation Clause, as alternative to incorporation as a judicial act? It seems so
extraordinary that what appears as a non-self-executory provision of the Constitution
is subjected to execution by judicial function. Is it time that the process should
now cross the Rubicon that divides the judicial and the legislative powers, to borrow
the words of Lord Devlin?
III. Philippine Practice in Supreme Court Decisions
In an obiter in U.S. vs. Guinto
8
the Supreme Court contextualizes the
Incorporation Clause in a larger theoretical frame:
Sovereign immunity is one of the generally accepted principles of international
law that we have adopted as part of the law of the land under Article II, Section 2 [of
the Constitution].
Even without such affirmation, we would still be bound by the generally
accepted principles under the doctrine of incorporation. Under this doctrine of
incorporation, 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
8 182 SCRA 644 (1990).
2 2 IBP JOURNAL
Merlin M. Magallona
membership in the society of nations. Upon the admission to such society the state
is automatically obliged to comply with these principles in relation with other states.
Here, by a make-believe theoretical construction, a monist view is attributed
to the character of the generally accepted principles of international law in the
Incorporation Clause. The purpose of this Clause, according to Guinto, is to make
such principles binding on the Philippines; but in the same breath it asserts this
function is needless because even without the Incorporation Clause under the doctrine
of incorporation the Philippines would still be bound by these principles. In this
mythical world, what appears as customary or general international law of which
the constituent norms are the generally accepted principles appear as an imposition
on States, helpless before the mechanical operation of a process by which the States
are automatically obliged to comply with these principles. Certainly, as thus
imagined, the Incorporation Clause becomes a surplusage and reduces the intent of
the Constitutions framers pertaining to it an idle play of words.
The real world may instead be reflected in the perspective of the Permanent
Court of International Justice as expressed in the Lotus Case (PCIJ, Series A, No. 10,
1927, p. 18), as follows:
International law governs the relations between States. The rules of law binding
upon States therefore emanate from their own free will as in conventions or by
usages generally accepted as expressing principles of law and established in order to
regulate the relations between those co-existing independent communities with a
view to the achievement of common aims.
It is true, as indicated in Guinto, that generally accepted principles of
international law are binding on the Philippines without this affirmation in the
Incorporation Clause. However, this pronouncement is made on the assumption
that the object and purpose of the Clause is to make this body of principles binding
on the Philippines which may be a misconception.
Independent of its Constitution, the Philippines is bound by obligations arising
from general international law as a State, as a person in the international legal order.
They are obligations that pertain to objective international law as it operates on the
international plane. In this light, the rights and duties of the Philippines are created
and are governed by international law. In general, they are binding on subjects of
international law.
This may have been the context of the binding character of the principles of
international envisaged by Guinto. As a departure from this vantage point, the
purpose of the Incorporation Clause is to internalize the principles of general
international law into Philippines law, insofar as they are identified in their
individualized nature. It is as national law that in domestic jurisdiction they create
rights and duties binding on subjects of Philippine law. The transmutation of these
principles into Philippine law gives way to the following consequences:
1. In Philippine jurisdiction, these principles are subordinated to the
Constitution; their operation is subject to constitutional and legal standards. Indeed,
they derive their operative validity from the Constitution by virtue of the proclamation
in the Incorporation Clause that they are constituted as national law. This marks a
radical departure from their legal status in the international sphere as constituent
norms of objective international law in which they hold supremacy over the
Constitution itself and statutory law.
2. The application of these principles as national law pertains to subjects or
persons of Philippine law, comprising of individual natural persons and juridical
entities, thus striking a difference from their status in the international order in
which they govern the legal relations of States and other persons of international
law.
From this standpoint, it is inaccurate to assert, as does Taada vs Angara,
9
that
[b]y the doctrine of incorporation, the country is bound by the generally-accepted
principles of international law which are considered to be automatically part of our
laws, referring to the Incorporation Clause. In the first place, it is not by the
doctrine of incorporation that the principles in question become national law, but by
the proclamation of the Constitution. Secondly, it is not the Philippines that is
bound by its own national law derived from such principles; rather, it is the Philippines
that makes its law binding on persons within its jurisdiction. What is binding on the
Philippines as a State are such principles operating as objective international law,
not as its own national law.
It is not at all out of context to refer to problems in regard to the application
of objective international law within Philippine jurisdiction, as contrasted to the
operation of principles under the Incorporation Clause. In Republic vs. Sandiganbayan,
10
the Supreme Court deals with what it describes as interregnum, the period after
the abrogation of the 1973 Constitution by the people power revolution and before
the installation of the 1987 Constitution, during which violations of human rights
were allegedly committed. During the interregnum, says Republic, a person could
not invoke any exclusionary right [in evidence] under a Bill of Rights because there
was neither a constitution nor a Bill of Rights during the interregnum. Nor was
there an Incorporation Clause.
Hence, Republic arrives at the following conclusion:
We hold that the Bill of Rights under the 1976 Constitution was not operative
during the interregnum. However, we rule that the protection accorded to individuals
under the Covenant and the Declaration remained in effect during the interregnum.
11
9 272 SCRA 18, at 66 (1997).
10 407 SCRA 10 (2003).
11 407 SCRA 10, at 51 (2003).
2 4 IBP JOURNAL
Merlin M. Magallona
Significantly, in applying the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, as affirmed above, Republic
explains that:
[T]he Court considers the Declaration as part of customary
international law, and that Filipinos as human beings are proper subjects of
international law laid down in the Covenant. The fact is the [people power]
revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution. As the
de jure government, the revolutionary government could not escape
responsibility for the States good faith compliance with its treaty
obligations under international law.
12
Absent the Incorporation Clause, Republic could not have applied human rights
protection as national law derived from generally-accepted principles of international
law. It applies the Declaration, or its constituent rights, (a) as customary international
law and (b) not in the interest of Filipinos as citizens but as human beings, by these
two factors signifying that Republic is applying objective international law on the
international plane, not as Philippine law the first phenomenon of its kind in
Philippine jurisprudence.
It is not clear how the protection under the Covenant would apply. In invoking
it, Republic may be understood to mean that protection becomes operational on account
of breach of obligations under the Covenant. But under the Covenant the relevant
approach may consist in the invocation of State responsibility. Necessarily, this is to
be addressed to the State Party who committed the internationally wrongful act.
Republic fails to recognize this problem.
Consider the absurdity Republic has created. A domestic court established by
a national constitution administering justice on violation of human rights upon the
petition of individual natural persons as subjects of international law, not national
law, and therefore they derive rights and obligations from objective international
law operating on the international plane as customary law. The perpetrators of
human right violations must also necessarily be subjects of international law and
they are parties to the dispute in which they are charged of having breached obligations
created under international law. Logically, the court must have assumed the function
of an international tribunal, but in truth it is an institution of national jurisdiction.
Its judgment certainly has no bearing at all in the context of objective international
law in which it assumes no validity. It remains integral to national law which defines
the courts jurisdiction. Its judgment binds no one in the international sphere; its
application of principles of customary or general international law is of dubious
validity in domestic jurisdiction because the Philippine legal system requires these
principles to be internalized as national law as a sine qua non for application.
12 407 SCRA 10, at 58 (2003). Emphasis added.
It must be underscored that what Republic means in reference to the legal status
of Filipinos is that they are beneficiaries in human rights treaties which are concluded
by States as subjects of international law. It is true that individual natural persons may
become subjects or persons of international law but only under conventional
international law, i.e., by treaty concluded by States, which define their rights and
obligations. It is only by this process that they become bearers of international
personality.
In reference to the continued binding character of the Covenant during the
interregnum, it would be less problematic if the distinction between State and
Government is kept in mind. The State as a person in international law is not
affected by internal changes in the Government even as such changes bring about a
revision of fundamental law or restructuring of its institutions. The identity and
continuity of the State in terms of its rights and obligations under international law
is maintained despite revolutionary changes, such as those brought about by people
power.
Agustin vs. Edu
13
relates itself to the Incorporation Clause in the following manner:
It cannot be disputed then that this Declaration of Principle found
in the Constitution possesses relevance: The Philippines [] adopts the
generally accepted principles of international law as part of the law of the
land [. . .T]he 1968 Vienna Convention on Road Signs and Signals is
impressed with such a character.
14
One is likely to be bemused, if not amused, at the implication in Agustin that
road signs and signals have become principles of law. Be that as it may, it makes no
sense in referring to the Vienna Convention in its entirety as impressed with the
character of generally accepted principles of international law. The nature and
form of this category of principles defies reference to the entire international
convention. By its nature as a source of law, the binding character of this Convention
is restricted to its States Parties, in contrast to generally accepted principles of
international law which are binding on all States. Agustin may even be taken to imply
that the entire Convention becomes national law by virtue of the Incorporation
Clause. But previous to Agustin, is it correct to suppose that the Convention been
already transformal into valid and effective domestic law on account of the Treaty
Clause of the Constitution? Agustin may have, in effect, made the Convention
Philippine law twice. This seems to be true with respect to the right to return to
ones country under the International Covenant on Civil and Political Rights in
Marcos vs. Manglapus
15
, and to the special duty of the receiving State to protect the
diplomatic premises of the sending State under the Vienna Convention on Diplomatic
Relations in Reyes vs. Bagatsing.
16
In both cases, the principles embodied in
13 88 SCRA 195 (1979).
14 Ibid., at 213.
15 Supra, note 6.
16 In both cases, the principles embodied in international conventions which are already binding on the Philippines as State Party
are subsequently subsumed under the Incorporation Clause by which again they become part of Philippine law.
2 6 IBP JOURNAL
Merlin M. Magallona
international conventions which are already binding on the Philippines as State Party
are subsequently subsumed under the Incorporation Clause.
Philippine practice in this sense has the effect of importing treaty norms to the
regime of Incorporation Clause principles, unmindful of the nature of these principles
as customary or general international law, in contrast to the binding character of
conventional or treaty norms as limited to the parties to it.
IV. Incorporation Clause and the Hierarchy of Norms
in International Law
An inquiry into the hierarchy of norms in international law is intended to
explore categories of law by way of determining some criteria for priority in the
application of generally accepted principles of international law. To begin with,
how is this phraseology to be interpreted?
It is submitted that this phraseology is to be understood as the general rules
of customary law or general international law, considered to be binding on all States.
In the Lotus Case, cited above, the Permanent Court of International Justice describes
this category as expressed by usages generally accepted as expressing principles
of law. The principles are within the scope of Article 38(1)(b) of the Statute of the
International Court of Justice in referring to international custom as general practice
accepted as law. They preclude rules which are binding only on a few or a small
number of States. It is suggested that it is by reason of the binding character of
these principles on all States that provides a decisive rationale to their status under
the Incorporation Clause.
1. Out of the whole corpus of general international law, the Vienna Convention
on the Law of Treaties creates the category of peremptory norms (jus cogens) which
has acquired supremacy over treaties concluded in conflict with such norms. They
have become the standard of validity of treaties. Article 53 of this Convention
defines peremptory norms and describes their binding character with respect to
treaties, thus:
A treaty is void if at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized by
the international community of States as a whole from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character.
It is provided in Article 64 of the Convention that the emergence of a new
peremptory norm is a ground for termination of treaties.
The imperative character of obligations arising from a peremptory or jus cogens
norm is applied beyond the law of treaties. Under the law of State responsibility,
wrongfulness of an act in breach of these obligations is not in any way precluded or
excused.
17
2. Principles or norms that embody erga omnes obligations are said to prevail
over those which bind one State in relation to another State. In the Barcelona Traction
Case, the ICJ declares:
[.A]n essential distinction should be drawn between the obligations
of a State towards the international community as a whole, and those
arising vis--vis another State . [. . .] 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.
18
In contemporary international law, erga omnes obligations are derived from
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.
19
3. Obligations of Member States under the Charter of the United Nations are
covered by the supremacy clause of Article 103. It provides:
In the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other international
agreements, their obligations under the present Charter shall prevail.
These obligations under the UN Charter are derived from the principles which
are binding on Member States as well as on the UN Organization itself, among
which are:
(a) sovereign equality of States;
(b) the duty to fulfil in good faith the obligations assumed by them in
accordance with the present Charter;
(c) the duty to settle international disputes in a peaceful manner; and
(d) prohibition against the threat or use of force against the territorial integrity
or political independence of any state, or in any manner inconsistent with
the Purposes of the United Nations.
(e) Universal respect for, and observation of, human rights and fundamental
freedoms with distinction as to race, sex, language or religion.
20
17 See Article 26 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts prepared by the
International Law Commission.
18 ICJ Reports, 1970, pp. 3, 32.
19 Id.
20 See UN Charter, Arts. 2, 55 and 56.
2 8 IBP JOURNAL
Merlin M. Magallona
In the Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation Among States in Accordance with the Charter of the
United nations, adopted by the UN General in Resolution 2625 (XXV) on 24 October
1970, the Member States in consensus accept and recognize that the following
constitute basic principles of international law:
(a) The principle that States shall refrain in their international relations from
the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
purposes of the United Nations.
(b) The principle that states shall settle their international disputes by peaceful
means in such a manner that international peace and security and justice
are not endangered.
(c) The principle concerning the duty not to intervene in matters under the
domestic jurisdiction of any state, in accordance with the Charter.
(d) The principle of equal rights and self-determination.
(e) The duty of States to cooperate with one another in accordance with the
Charter.
The principles catalogued above have been recognized by the international
community as a whole as general international law. They embody obligations which
every State owes to the international community. Hence, these obligations are
properly regarded as erga omnes. Inevitably, by the nature of jus cogens norms they
embody erga omnes obligations. Even as all erga omnes obligations may not be in the
nature of jus cogens norms, jus cogens norms necessarily embody erga omens obligations.
The juridical character of the jus cogens norms as well as of erga omnes obligations is
deemed to be established by the international community as a whole.
What may appear as in the theory of actio popularis is the formulation of the
international Law Commission under its Draft Articles referred to above. Draft
Article 33 defines the scope of the obligation of the responsible State as including
those owed to the international community as a whole. A State injured by an
internationally wrongful act, under Draft Article 42, is entitled to invoke the
responsibility of another State on account of such act if the obligation breached is
owed to the international community as a whole. It becomes an internationally
wrongful act not only against one State but injurious to the interest of the international
community as a whole.
V. Concluding Note
The presentation in this essay is addressed to the problem as to the more
concrete identification of what are generally accepted principles of international
law which are constitutionally proclaimed as Philippine law under the Incorporation
Clause. It may serve to provide a guideline by which this category of national law
establishes its correspondence with relevant principles of general international law
in terms of their substantive content, in the face of failure in Philippine practice to
inquire into such correspondence, leading to arbitrary or whimsical assumption as
to what might be the substantive content of the Incorporation Clause principles as
determined by objective international law. It is an attempt to contribute to resolving
the enigma that is the Incorporation Clause which declares that something is
constituted as law, without telling us what it is in operational identity: In one corner,
the Constitution hides a law that is non-law in public knowledge.

3 0 IBP JOURNAL
Defining Regulatory Spaces:
Precautionary Principles, Regulatory
Diversity and the SPS Treaty of the
WTO Agreement
*
**
Humankind has not woven the web of
life. We are but one thread within it.
Whatever we do to the web, we do to
ourselves. All things are bound
together. All things connect.
~Chief Seattle
When one tugs at a single thing in
nature, he finds it attached to the rest of
the world.
~John Muir
Our environment, the world in which we
live and work, is a mirror of our attitudes
and expectations.
~Earl Nightingale
The Precautionary Principle encourages international actors not to hesitate to
provide more protection to human, animal and plant life and their ecosystems against
a perceived harm even in the absence of clear scientific proof. It is implicitly based
on the acceptance that collective human knowledge may have not been able to fully
comprehend with certainty, the consequences of all human activity. In all of its
versions, it is therefore necessarily broad and encompassing.
On the other hand, the World Trade Organization (WTO) through its Sanitary
and Phytosanitary Safeguards (SPS) Treaty and the interpretations of its Appellate
Body, while not necessarily disagreeing with the Precautionary Principle or its
*
Preliminary version, presented during the Third Asian Law Institute (ASLI) Conference: The Development of
Law in Asia: Convergence versus Divergence, May 25 to 26, 2006, East China University of Politics and Law,
Shanghai, Peoples Republic of China.
**
Dean and Professor, College of Law, University of the Philippines; Professorial Lecturer, Department of
Constitutional Law, Philippine Judicial Academy. The author invites comments through marvic.leonen@mac.com.
objectives, has effectively limited its application. This is so because of the WTOs
concern that these measures may be used to unjustly or arbitrarily discriminate
between goods or services on the basis of their origin or that these measures could
be used as a disguised restriction to trade. In the WTO-SPS version, the
Precautionary Principle is precise and limited to conditions stated in Article 5
Paragraph 7 of the treaty.
The range of options to address perceived harm to human, animal, plant life
and health as well as their ecologies therefore is now limited. Only limited regulatory
diversity is allowed. The extent of this limit is mediated by science. More specifically,
in the context of the WTO, the limit is determined by the Appellate Bodys tolerance
of scientific interpretation. The current approach therefore transplants the politics
of who can do more science, the availability of scientific analysis, and the dynamic of
ownership of scientific approach into this area of international legal interpretation.
The Broad Form:
Precautionary Principle in its
Environmental Versions
Principle 15 of the 1992 Rio Declaration of the United Nations Conference on
Environment and Development (UNCED) provides:
[i]n order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities. Where
there are threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
1
(emphasis provided)
This restatement of the Precautionary Principle seems to be generally accepted
although more restrictive versions have been incorporated in various international
legal instruments.
2
Commentators accept that there are at least four elements to this principle.
3
First, there must be appreciation of a degree and certainty of a danger that justifies
a regulatory response. Second, there must be some understanding of the certainty
of the perceived harm and the taking of a regulatory measure. Third, there must be
some regulatory response. Finally, it is generally understood that this regulatory
response is provisional and may be subject to better certainty in the nature and
certainty of the risk and the effectivity of the measures that have so far been taken.
1
Rio Declaration on Environment and Development, Annex 1, principles, 15 U.N. Doc. A/CONF.151/5/Rev. 1
(1992), reprinted in 31 I.L.M. 874, 879. Referred to as the Rio Declaration.
2
See for instance the reviews in Applegate, John S., The Taming of the Precautionary Principle, 27 Wm. and
Mary Environmental L. & Policy Rev. 13 (2002) and Sunstein, Cass R., Beyond the Precautionary Principle,
Chicago Public Law and Theory Working Paper No. 38, January 2003
(available at http://www.law.uchicago.edu/academics/publiclaw/index.html last visited May 2006).
3
Applegate, note 2, at 18 to 20.
3 2 IBP JOURNAL
The first element seems to suggest two dimensions. The body that takes a
regulatory response must have some appreciation of the level of the seriousness of
the harm. Furthermore, there must be acceptance of the quantity and quality of the
information that provides the basis for the assessment of the possibility of occurrence
of such harm. The acceptance of seriousness of the harm as opposed to the harm
itself is essentially subjective. The seriousness of losing a threatened bird specie is
different from establishing the fact that it is threatened. The seriousness of losing
ecosystems in favor of producing mineral wealth, perhaps in an economic sense, is
different from establishing the fact that mining does affect the environment.
The possibility of the harm happening may not be as subjective and may be
the subject of science and scientific methodology. It is basically a matter of risk
assessment.
Risk is the probabilistic likelihood of an unplanned, undesired or unwanted
event actually happening.
4
Risk assessment involves hypothesizing cause and effect,
designing and implementing experiments or quasi-experiments that control for other
variables, measuring the results and mathematically quantifying the probabilities.
Risk assessment therefore inherently involves scientific information, methodologies
and analysis. The quantity of scientific research on the same question will raise
questions relating to the replicability of the results and therefore would impact on
the quality of later analysis and proof of the original claim as to cause and effect.
Claims can be as simple as whether mature spotless apples carry bacteria causing
fire blight or whether riding a motorcycle increases the chance of accidents to the
rider. It can be as complex as whether residues in food of specific growth hormones
artificially introduced in cattle have carcinogenic effect. In all these examples, one
can imagine the issues relating to whether there is enough science, how specific they
would be, the probabilities involved and how conclusive their findings. The challenge
for policy makers therefore is less about how to assess but how people get informed,
how to mitigate their impact and when the harm happens, how to apportion the
liabilities.
5
Risk assessment therefore is different from risk communication and risk
management. All these can involve science.
The second element of the precautionary principle involves an examination
of the possible effectivity of the mitigating measures. For instance, will wearing a
helmet reduce injuries in case of motorcycle accidents; will banning the importation
of all apples from a state that has experienced fire blight really protect the state
taking this measure; and will banning the importation of all cattle from economies
that allow the use of growth hormones reduce the possibility of contracting any kind
of cancer.
4
Smith, S, Philipps, P.W.B., Kerr, W.A., and Khachatourians, G.G.
Regulating the Liabilities of Agricultural Biotechnology 9, (CABI Publishing, 2004).
5
See Smith et al. at note 4, 9.
Even with the use of the best available scientific information, there will always
be the inherent uncertainty of both the risk and the effectivity of mitigating measures.
The Precautionary Principle addresses and hopes to increase the tolerance for
uncertainty for purposes of taking regulatory measures to address a perceived harm
and its imminence.
The third element therefore requires the regulator to take a response. This
may not always mean a prohibition against the human product or intervention.
Depending on the quality of understanding and the degree of acceptance of the
riskthe tolerancethere can be as many policy options as are creatively and politically
possible. In other words, the precautionary principle does not sanction an attitude
that looks at any innovation with suspicion.
6
At the very least, it declares that
uncertaintyeven scientific uncertaintyshould not be used as an excuse from taking
a cost effective measure to address a perceived harm on the environment. In other
words, it is indeed better to be safe than sorry.
The fourth element is implied from the principle. Since the measures are
taken on the basis of the best available information, or even none at all, it can be
argued that further calibration of the response would have to follow better
information. Regulatory bodies may also learn from doing. Hence the process is
iterative and the measures provisional.
The precautionary principle does not define the required seriousness of the
harm, its probability of occurrence, the measures that are to be taken and the level
of certainty of the information on the basis of which they are taken. It does not also
define the processes that must be put in place to learn from the implementation of
the measures and for the regulatory bodies to update themselves in terms of the
information taken. Hence, it is quite vague and provides an approach rather than
clear directions to those who adopt it.
The Restricted Form:
Precautionary Principle in the
WTO-SPS Version
The WTOs Appellate Body has dealt with unilateral environmental measures
in the past that have an international impact.
In the United StatesShrimp/Turtle case, the body upheld a US regulation that
disallowed the importation of shrimp without a certification coming from its Bureau
of Agriculture that it was caught in a way that did not further endanger five threatened
species of turtles against a claim that the WTO regulations prevent unilateral action.
6
But see Cass, Sustein at note 2 where he argues that the precautionary principle in some of its versions do not
make sense because among others it assumes the benign nature of ecosystems while also assuming the pathogenic
nature of any human intervention.
3 4 IBP JOURNAL
The Appellate Body read article XX of the GATT as an exception to the disciplines
required in Article XI and article III. More specifically, it said that the GATT does
not prohibit domestic measures that have an international effect when it relates to
the conservation of exhaustible natural resources.
However, noting the chapeau of article XX, it declared that the regulation was
not WTO compliant as applied. Evidence showed that there was differential
treatment in the compliance periods given to different member countries. The
Appellate Body also found that there was an implied requirement that turtle excluder
devices (TED) be used. It said that there were other relevant conforming means of
shrimp farming which seemed not to have been recognized by the US inspectors.
Hence, it found this practice a disguised restriction to trade and an unjustified
discrimination against other shrimp farmers.
In the United States Shrimp/Turtle case, the effect of specific shrimp farming
methods on the further decline in the population of threatened turtle species was
not raised as an issue. There was therefore no need to examine the scientific
justification of this claim upon which the US measures were based.
In the EC Asbestos case, the WTO Appellate Body took cognizance of the
environmental consequences of the use of a product as part of its physical characteristic
in determining whether it was a like product within the context of Article III of the
GATT. The measure in question was a ban of all asbestos products by France.
Canadas complaint was, among others, based on the alleged discriminatory treatment
between asbestos products and like or directly substitutable goods consisting of
insulating material made in France. Since the carcinogenic potential of asbestos
products had clear scientific basis, the Appellate Body ruled that although the
economical utility of both products may be the same, it was considered different for
purposes of regulation under Article III Paragraph 4 of the GATT.
The scientific basis relating to the carcinogenic potential of asbestos does not
seem to have been a grave issue in the EC Asbestos case.
Implicit in these decisions is that a regulatory measure may consist of a total
ban in the sale or use of a product within a domestic setting. The WTO regulations
tolerate these measures and do not evaluate them on the basis of the preferences in
regulatory measure or level of protection chosen by a member State. Trade rules
seem to be agnostic to these environmental measures except when these constitute
unjust discrimination of like products of a differing origin or would therefore be a
disguised restriction to trade.
The SPS
7
treaty clarify the limits of sanitary and phytosanitary
8
measures
taken by a WTO member. To prevent the abuse of these measures, at least three
approaches are taken. Abuse of course would result when there is a showing that
there is an unjustified or arbitrary discrimination or when there is a showing that
the measures are disguised restriction to trade.
First, the members have committed that all sanitary and phytosanitary measures
are to be established and maintained only with sufficient scientific justification.
9
Second, the treaty allows international scrutiny with respect to whether there is
discrimination among similar products.
10
Third, members should not impose
restrictions on products of international origin that it would not impose on the same
products internally.
11
This paper discusses in detail the first approach.
The Appellate Body in the Australian-Salmon case distinguished between the
level of protection
12
that a country chooses, the measures taken to achieve that
measure
13
, and the scientific justification on which these measures are based.
WTO Appellate Body cases affirm that the level of protection is still within
the prerogative of a Member. This is principally based on the preamble
14
and Article
7
Agreement on the Application of Sanitary and Phytosanitary Measures
8
SPS Treaty, Annex A, paragraph 1 defines sanitary or phytosanitary measure as Any measure applied: (a) to
protect animal or plant life or health within the territory of the Member from risks arising from the entry,
establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) to
protect human or animal life or health within the territory of the Member from risks arising from additives,
contaminants, toxins or disease causing organisms in foods, beverages or feed stuffs; (c) to protect human life
or health within the territory of the Member from risks arising from disease carried by animals, plants or
products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage
within the territory of the Member from the entry, establishment or spread of pests.
9
SPS Treaty, article 2, paragraph 2: Members shall ensure that any sanitary or phytosanitary measure is applied
only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and
is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of article 5.
10
SPS Treaty, article 5, paragraph 5: With the objective of achieving consistency in the application of the concept
of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal
and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers
to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on
international trade.
11
SPS Treaty, article 5, paragraph 6: Without prejudice to paragraph 2, article 3, when establishing or maintaining
sanitary or phystosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection,
Members shall ensure that such measures are not more trade restrictive than required to achieve their appropriate
level of sanitary or phytosanitary protection, taking into account technical and economic feasibility.
12
SPS Treaty, Annex A, paragraph 5 refers to this as both the appropriate level of sanitary or phytosanitary
protection and is the same as acceptable level of risk.
13
Appellate Body Report, Australia Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 20
October 1999, para. 200. The definition of measures are quite broad. In this case, it was used as a term for
an instrument chosen by a state to attain or implement an objective.
14
SPS Treaty, first preambular clause: Reaffirming that no Member should be prevented from adopting or
enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that
these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable
discrimination between members where the same conditions prevail or a disguised restriction on international
trade.
3 6 IBP JOURNAL
2, Paragraph 1
15
of the SPS treaty. However, the level of protection must now be
explicitly stated by the state imposing the measure. It should not simply be implied
and thus derived by a dispute panel on the basis of the measures that are before
them.
The requirement of a risk assessment in Article 5, Paragraph 1
16
is seen as a
supplement and an amplification of the requirement that sanitary and phytosanitary
measures cannot be established and maintained without adequate scientific
justification.
17
Risk assessments are defined in Paragraph 4, Annex A of the
Agreement as:
Risk Assessment - The evaluation of the likelihood of entry,
establishment or spread of a pest or disease within the
territory of an importing Member according to the sanitary
or phytosanitary measures which might be applied, and of
the associated potential biological and economic
consequences; or the evaluation of the potential for adverse
effects on human or animal health arising from the presence
of additives, contaminants, toxins or disease-causing
organisms in food, beverages or feedstuffs.
Traditionally, the provision is interpreted to refer to two types of risk
assessment: one involving the entry, establishment or spread of a pest or disease,
and the other to the effects on health from the presence of additives, contaminants,
toxins or disease-causing organisms in food, beverages or feedstuffs.
In the AustraliaSalmon
18
case and for the first type of risk assessment, this
provision was interpreted to require that the member must: (1) identify the disease
or the adverse effect as well as the potential biological and economic consequences
associated with the disease; (2) evaluate the likelihood of entry, establishment or
spread of the disease; and (3) evaluate the likelihood of entry, establishment or
spread of the disease according to the measure adopted. In addition, the member
adopting the measure should be clear with respect to the desired level of protection.
15
SPS Treaty, article 2, paragraph 1: Members have the right to take sanitary or phytosanitary measures
necessary for the protection of human, animal or plant life or health, provided that such measures are not
inconsistent with the provisions of this agreement.
16
SPS Treaty, article 5, paragraph 1: Members shall ensure that their sanitary or phytosanitary measures are
based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or
health, taking into account risk assessment techniques developed by the relevant international organizations.
17
Appellate Body Report, Australia Measures Affecting Importation of Salmon, supra footnote 19, at para. 130.
18
Ibid., at para.121.
To be based on a risk assessment requires having an objective logical
relationship between the measures imposed and the risks involved.
19
This does
not mean that there must be a showing, that regulatory bodies have subjectively
taken the prior scientific studies into consideration before enacting the measure.
20
It does not even require that the regulatory body did the scientific studies.
21
It
suffices that these studies exist and that there is some relationship to the measures
taken. In fact, a member taking a measure may rely on the studies done by another
member country.
22
The precautionary principle is seen as an exception to the first requirement
and is triggered only when the scientific evidence is insufficient.
23
Thus in ECMeat
Hormones, the Appellate Body declared:
The status of the precautionary principle in international
law continues to be the subject of debate among academics,
law practitioners, regulators and judges. The precautionary
principle is regarded by some as having crystallized into a
general principle of customary international environmental law.
Whether it has been widely accepted by Members as a
principle of general or customary international law appears less
than clear. We consider, however, that it is unnecessary, and
probably imprudent, for the Appellate Body in this appeal
to take a position on this important, but abstract, question
It appears to us important, nevertheless, to note some
aspects of the relationship of the precautionary principle to
the SPS Agreement. First, the principle has not been written
into the SPS Agreement as a ground for justifying SPS measures
that are otherwise inconsistent with the obligations of
Members set out in particular provisions of that Agreement.
19
See Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones),
WT/DS26/B/R, WT/DS48/AB/R, adopted on 16 January 1998, para. 189; Appellate Body Report, Australia
Measures Affecting Importation of Salmon, supra, footnote 19, at para. 123.
20
Ibid.
21
Ibid., at para.190.
22
SPS Treaty, article 9, paragraph 1: Members agree to facilitate the provision of technical assistance to other
Members, especially developing country Members, either bilaterally or through the appropriate international
organizations. Such assistance may be, inter alia, in the areas of processing technologies, research and infrastructure,
including in the establishment of national regulatory bodies, and may take the form of advice, credits, donations
and grants, including for the purpose of seeking technical expertise, training and equipment to allow such
countries to adjust to, and comply with, sanitary or phytosanitary measures necessary to achieve the appropriate
level of sanitary or phytosanitary protection in their export markets.
23
SPS Treaty, article 5, paragraph 7: In cases where relevant scientific evidence is insufficient, a Member may
provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including
that from the relevant international organization as well as from sanitary or phytosanitary measures applied by
other Members. In such circumstances, Members shall seek to obtain the additional information necessary for
a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a
reasonable period of time.
3 8 IBP JOURNAL
Secondly, the precautionary principle indeed finds reflection
in Article 5.7 of the SPS Agreement. We agree, at the same
time, with the European Communities, that there is no need
to assume that Article 5.7 exhausts the relevance of a
precautionary principle. It is reflected also in the sixth
paragraph of the preamble and in Article 3.3. These
explicitly recognize the right of Members to establish their
own appropriate level of sanitary protection, which level may
be higher (i.e., more cautious) than that implied in existing
international standards, guidelines and recommendations.
Thirdly, a panel charged with determining, for instance,
whether sufficient scientific evidence exists to warrant the
maintenance by a Member of a particular SPS measure may,
of course, and should, bear in mind that responsible,
representative governments commonly act from perspectives
of prudence and precaution where risks of irreversible, e.g.
life-terminating, damage to human health are concerned.
Lastly, however, the precautionary principle does not, by
itself, and without a clear textual directive to that effect,
relieve a panel from the duty of applying the normal (i.e.
customary international law) principles of treaty
interpretation in reading the provisions of the SPS Agreement.
Interestingly, in interpreting Article 11 of the Dispute Settlement
Understanding (DSU), the Appellate Body has consistently held that the standard of
review that panels can take when examining compliance with the requirements of
the SPS is neither of two extremes. It is not always a de novo review. Neither
does it always imply a deferential attitude towards the evaluation of made by a
party to a dispute.
De novo review implies that a dispute panel disregards the scientific claims
and evaluation made by both parties and conducts its own inquiry into the matter. A
reasonable deferential attitude on the other hand means that the panel will not
conduct its own inquiry and simply depend upon the evaluation of the parties to the
dispute. Consistently, the Appellate Body has declared that the panel has the
discretion to determine the sufficiency of the claims made by the parties either by
itself, through the employment of individual experts or the creation of expert working
groups. In other words, the sufficiency of the scientific analysis and the conclusions
made from various studies is left to the discretion of the panel. The panel also has
the discretion to determine whether in fact, the scientific information is insufficient
for purposes of Article 5 Paragraph 7 of the SPS treaty.
Conclusion
The current content of the SPS Treaty within the WTO Agreements definitely
defines the regulatory space for its members, at least with respect to measures that
affect importation of goods and services coming from outside their borders. In a
sense, the principle limits the sovereign options of governments, encourages them
to increasingly deal with multilateral international organizations concerned with the
formulation of minimum sanitary and phytosanitary standards and encourages the
use of more science in mandatory risk assessments on which to base these measures.
In the formulation of these minimum standards, states expectedly would use the
latest scientific research and analysis to support their proposals.
On an international level, the WTO Appellate Body has contributed to the
clarification of the precautionary principle. Whether this clarity will contribute to
sanitary or phytosanitary measures that are more objectively based on scientific
principles or may further weaken the ability of smaller developing member states
as against developed member economies or the transnational corporations with huge
research budgets however remains to be seen.

4 0 IBP JOURNAL
Merlin M. Magallona
Revised Code of Corporate
Governance:
A REACTIONARY APPROACH
*
Cesar L. Villanueva**
On July 15 2009, the REVISED CODE OF CORPORATE GOVERNANCE
1
(the
Revised CG Code) came into effect to replace the 2002-vintage SEC Code of
Corporate Governance
2
(the original SEC Code). The use of the term Revised
in its title is meant to indicate that the Revised CG Code is primarily based on the
existing structure and provisions of the original SEC Code, and therefore, the
significance of the additions, deletions, changes and amendments contained in the
Revised CG Code are supposed to take their real significance by way of comparison
with the provisions of the original SEC Code.
The Revised CG Code is supposedly the result of lobbying efforts from both
the Philippine Stock Exchange (PSE) and the Institute of Corporate Directors (ICD)
to incorporate reforms in the original SEC Code coming from hard lessons learned
by directors and officers of covered corporations, as well as from the invaluable
experiences of corporate governance practitioners under the regime of the original
SEC Code. Our review of the Revised CG Code, and the initial feedback received
from the field, is, to say the least, one of disappointment Sayang!
The feeling that one is left with after reading the Revised CG Code is that the
great experiment of ushering into our jurisdiction modern corporate governance
principles and practices has abruptly come to an end; and that we in the Philippines
are retreating back to old, familiar grounds the governance principles espoused
under the century-old principles embodied in the Corporation Code. Indeed, what
stand out from the provisions of the Revised CG Code are not what new cutting-
edge concepts or provisions were introduced, but rather what seminal provisions
have been taken out from the provisions of the original SEC Code.
* The discussions contained in this paper are better appreciated when read in connection with the authors book
THE LAW AND PRACTICE ON: PHILIPPINE CORPORATE GOVERNANCE (Holy Angel University Press, 2009),
and is issued formally as a supplement to said publication.
** Dean of the Ateneo de Manila School of Law, Professorial Lecturer in Corporation Law and Sales; Senior
Partner, Villanueva Gabionza & De Santos Law Offices.
1 SEC Memorandum Circular No. 6, series of 2009.
2 SEC Memorandum Circular No. 2, series of 2002.
Revised Code of Corporate Governance: A REACTIONARY APPROACH
Coverage of the Revised CG Code
The covered corporations under the Revised CG Code seem to be the same as
those covered in the original SEC Code, which originally read as follows: this Code
. . . shall be applicable to corporations whose securities are registered or listed,
corporations which are grantees of permits/licenses and secondary franchise from
the Commission and public companies. This Code also applies to branches or
subsidiaries of foreign corporations operating in the Philippines whose securities
are registered or listed.
The original SEC Code then separately defined public companies to mean
any corporation with a class of equity securities listed in an Exchange or with assets
in excess of Fifty Million Pesos (P50,000,000.00) and having two hundred (200) or
more stockholders each holding at least one hundred (100) shares of a class of its
securities. The original SEC Code covered the following sets of covered
corporations, thus:
(a) Corporations whose securities are registered or listed, which includes
the branches or subsidiaries of foreign corporations operating in the
Philippines whose securities are registered or listed;
(b) Public companies, i.e., those with assets in excess of Php50.0 Million,
with at least 200 stockholders who own at least 100 shares of a class
of its securities;
(c) Corporations which are grantees of permits/licenses and secondary
franchise from the SEC.
which meant that the principles of corporate governance are made to apply, not to
all corporations, but only those which for lack of a better term, we have dubbed
as public companies and by reason of which the impact of their business enterprises
on the public are deemed to be vested with a certain degree of public interest
beyond those of their shareholders. It is the fact that the business of a public company
affects not only the shareholders, but other components of the market or society, by
which the principles of the Stakeholder Theory are intended to apply.
The coverage clause of the Revised CG Code seems to have expanded the
coverage of what are within covered corporations when it embedded the definition
of public companies within said coverage clause, which now reads as follows:
. . . this Revised Code of Corporate Governance . . . shall apply to registered
corporations and to branches or subsidiaries of foreign corporations
operating in the Philippines that (a) sell equity and/or debt securities to
the public that are required to be registered with the Commission, or (b)
have assets in excess of Fifty Million Pesos and at least two hundred
(200) stockholders who own at least one hundred (100) shares each of
4 2 IBP JOURNAL
Cesar L. Villanueva
equity securities, or (c) whose equity securities are listed on an Exchange;
or (d) are grantees of secondary licenses from the Commission.
3
which seems to indicate that even branches or subsidiaries of foreign corporations
operating in the Philippines that . . . have assets in excess of Fifty Million Pesos and
at least two hundred (200) stockholders who own at least one hundred (100) shares
each of equity securities, are covered by our Revised CG Code, even when they do
not sell equity and/or debt securities in the Philippines required to be registered
with the SEC, or even when they have not listed any equity securities on an Exchange.
This would include large American and European corporations having established
branches or subsidiaries in the Philippines.
Likewise, the sequencing seems to imply that the branches and subsidiaries of
foreign corporations operating in the Philippines which are grantees of secondary
licenses from the Commission are also covered by the mandatory provisions of the
Revised CG Code. This would mean all branches of foreign corporations are covered
since all such branches have been issued licenses to do business in the Philippines by
the SEC. By virtue of their local operations in the Philippines, foreign companies
would have to implement the provisions of the Revised CG Code to matters that are
happening in their headquarters, since that is where the Boards and Management of
foreign companies are located.
We believe that as correctly enumerated under the original SEC Code, it is
only in branches or subsidiaries of foreign corporations operating in the Philippines
whose securities are registered or listed, where the provisions of the Revised CG
Code should apply. This is an important consideration to keep in mind, since the
Revised CG Code has imposed a heftier and more encompassive penalty for violation
of its provisions, when compared to the original SEC Code.
Finally, because the Revised CG Code has retained within its coverage those
companies which are grantees of secondary licenses from the Commission, then it
must stand to reason that the exclusive enumeration of those falling within this
category under SEC Memorandum Circular No. 16, s. 2002,
4
still applies, namely:
(a) finance companies; (b) investment houses; (c) brokers and dealers of securities;
(d) investments companies; (e) pre-need companies; (f) stock and other securities
exchanges.
The point being made is that by retaining the coverage of the principles of
corporate governance to public companies, or at least by expressly stating that its
mandatory provisions are applicable only to covered corporations (All covered
corporations shall establish and implement their corporate governance rules in
accordance with this Code), the Revised CG Code is making it clear that it recognizes
the public interests that pertain to covered corporations, as distinguished from all
3 Opening paragraph, Revised CG Code.
4 Guidelines on the Nomination and Election of Independent Directors.
other private and non-public companies whose business enterprises do not affect
public interest, or whose business enterprises only affect private interests, mainly
their stockholders.
Abandonment of the Stakeholder Theory
What is truly astounding in the Revised CG Code is the dropping of all reference
to stakeholders and the Stakeholder Theory.
The primary issue that ought to be settled with the coming into effect of the
Revised CG Code is the obvious question Has there been an abandonment of the
Stakeholder Theory, and a return to the near-exclusive application of the doctrine of maximization
of shareholders value?
1. Deletion of All Reference to Stakeholders
Under the original SEC Code, the term Corporate Governance was defined to
embody the Stakeholder Theory, thus
B. CORPORATE GOVERNANCE REFERS TO A SYSTEM WHEREBY
SHAREHOLDERS, CREDITORS AND OTHER STAKEHOLDERS OF A
CORPORATION ENSURE THAT MANAGEMENT ENHANCES THE
VALUE OF THE CORPORATION AS IT COMPETES IN AN
INCREASINGLY GLOBAL MARKET PLACE.
5
The recognition that it was not only the shareholders of a public company, but
also creditors and other stakeholders as having legal and business standing to ensure
that management enhances the value of the corporation, officially ushered within the
institution of Philippine public companies the Stakeholder Theory or the theory of
enhancing the value of the corporation on a long-term basis for the benefit of all
those affected by its business enterprise, as distinguished from the Shareholder Theory
or the doctrine of maximization of shareholder value.
The Revised CG Code has switched to a process-driven definition similar to
that found in the IC Code of Corporate Governance Principles and Leading Practices,
6
but which in addition limits the coverage only to stockholders thus,
5 Sec. I(B), original SEC Code of Corporate Governance; reformatted and with emphasis supplied.
6 IC Circular No. 31-2005, 26 September 2005, which defines Corporate Governance under Sec. I(1) as
follows: the system by which companies are directed and managed. It influences how the objectives of the
company are set and achieved, how risk is monitored and assessed, and how performance is optimized.
4 4 IBP JOURNAL
Cesar L. Villanueva
A) CORPORATE GOVERNANCE THE FRAMEWORK OF RULES,
SYSTEMS AND PROCESSES IN THE CORPORATION THAT
GOVERNS THE PERFORMANCE BY THE BOARD OF DIRECTORS
AND MANAGEMENT OF THEIR RESPECTIVE DUTIES AND
RESPONSIBILITIES TO THE STOCKHOLDERS.
7
Whereas the IC Code specifically refers and defines stakeholders to include
not only stockholders, but also to the group of company owners, officers and
employees, policyholders, suppliers, creditors and the community,
8
the Revised
CG Code has opted to drop every reference to stakeholders found in the original
SEC Code.
Thus, the provision under General Responsibility of Directors of covered
corporations under the original SEC Code which provided that a director assumes
certain responsibilities to different constituencies or stakeholders, who have the right to expect that
the institution is being run in a prudent and sound manner,
9
has been entirely deleted in the
Revised CG Code. The immediately quoted provision had been lifted by the SEC
directly from BSP Circular No. 318, series of 2001, and we have also criticized its
formal adoption into the original SEC Code as being rather dangerous because it
ought to apply only to stakeholders of companies that hold the investments and
savings of the public (such as banks and insurance companies). However, the deletion
in the Revised CG Code may be interpreted to mean that only shareholders have
standing with respect to the business operations of covered companies, as the new
provision now reads:
1. GENERAL RESPONSIBILITY
IT IS THE BOARDS RESPONSIBILITY TO FOSTER THE LONG-
TERM SUCCESS OF THE CORPORATION, AND TO SUSTAIN ITS
COMPETITIVENESS AND PROFITABILITY IN A MANNER
CONSISTENT WITH ITS CORPORATE OBJECTIVES AND THE
BEST INTEREST OF ITS STOCKHOLDERS. x x x.
10
The use of the term to foster the long-term success of the corporation, which normally
would have the same value and meaning as enhancing the value of the corporation, is
one of the hallmarks of the stakeholder theory to focus Board and Management
efforts toward long-term goals that protect the interests of all, if not most
stakeholders, rather than the short-term seeking of profits which only enhances the
interests of current shareholders, as they trade their shareholdings in the stock
7 Reformatted and with emphasis supplied.
8 Sec. I(18), IC Code of Corporate Governance Principles and Leading Practices.
9 Sec. II(5)(a), original SEC Code of Corporate Governance.
10 Article 2(F)(1), Revised CG Code; reformatted and with emphasis supplied.
market. The context of the afore-quoted provision that juxtaposes the long-term
success of the corporation only in line with the best interest of its stockholders may be
interpreted to mean an abandonment of the stakeholders theory under the Revised
CG Code, and a return to the much narrow path offered by the maximization of
shareholders equity as the only object of corporate governance.
Furthermore, under Section II(5)(b) of the original SEC Code (on Duties and
Functions of the Board) which provided that to insure a high standard of best
practice for the company and its stakeholders, the Board should conduct itself with
utmost honesty and integrity in the discharge of its duties, functions and
responsibilities,
11
the current Article 2(F)(2) of the Revised CG Code has limited
such duties and functions only for the corporation and its stockholders.
12
The
revision effected under the Revised CG Code may be taken to mean that it is the
current position of the SEC that the duties and functions of the Board of covered
corporations, as well as their fiduciary obligations, now pertain solely to the company
and its shareholders, a complete abandonment of the Stakeholder Theory.
The duty imposed upon the Board of Directors of covered corporations under
Section II(5)(b) of the original SEC Code to identify their stakeholders and the duty
of accounting owed to them, thus
IV. IDENTIFY THE CORPORATIONS MAJOR AND OTHER STAKEHOLDERS AND
FORMULATE A CLEAR POLICY ON COMMUNICATING OR RELATING WITH
THEM ACCURATELY, EFFECTIVELY AND SUFFICIENTLY. THERE MUST BE
AN ACCOUNTING RENDERED TO THEM REGULARLY IN ORDER TO SERVE THEIR
LEGITIMATE INTERESTS.
13
has now been rendered to be merely a communication process under Article 2(F)(2)
of the Revised CG Code to cover only the following:
. . . IDENTIFY THE SECTORS IN THE COMMUNITY IN WHICH THE CORPORATION
OPERATES OR ARE DIRECTLY AFFECTED BY ITS OPERATIONS, AND FORMULATE A
CLEAR POLICY OF ACCURATE, TIMELY AND EFFECTIVE COMMUNICATION
WITH THEM.
14
and clearly avoids the use of the term stakeholders.
The duty imposed on the Corporate Secretary of a covered corporation under
Section II(9) of the original SEC Code is that he should work and deal fairly and
objectively with all the constituencies of the corporation, namely, the Board,
management, stockholders and other stakeholders. As such, he should be someone
his colleagues and these constituencies can turn to, trust and confide with on a regular
11 Emphasis supplied.
13 Reformatted and emphasis supplied.
14 Reformatted and emphasis supplied.
4 6 IBP JOURNAL
Cesar L. Villanueva
basis,
15
has been limited under Article 2(L) of the Revised CG Code only to the
duty to work fairly and objectively with the Board, Management and stockholders.
The provision under Section IV (Accountability and Audit) under the original
SEC Code, referring to the Boards obligation to stakeholders to
D. MAINTAIN A SOUND SYSTEM OF INTERNAL CONTROL TO
SAFEGUARD STAKEHOLDERS INVESTMENT AND THE COMPANYS
ASSETS;
16
has effectively been replaced in the Revised CG Code with the provision that reads:
Management should formulate, under the supervision of
the Audit Committee, the rules and procedures on financial
reporting and internal control in accordance with the
following guidelines:
x x x
(ii) An effective system of internal control that will ensure
the integrity of the financial reports and protection of the
assets of the corporation should be maintained.
x x x.
17
Finally, the provision of Section IV (on Disclosure and Transparency) of the
original SEC Code that
THE BOARD SHALL THEREFORE, COMMIT AT ALL TIMES TO FULL
DISCLOSURE OF MATERIAL INFORMATION DEALINGS. IT SHALL CAUSE
THE FILING OF ALL REQUIRED INFORMATION FOR THE INTEREST OF THE
STAKEHOLDERS.
18
has been entirely deleted in the Revised CG Code.
All the foregoing indicate that the Revised SEC Code has taken a rejection
tone of the Stakeholder Theory, and one may be led to the conclusion that has seen
our Supreme Court holding that in the realm of Philippine Corporation Law, the
Board of Directors and Management of every corporation owe fiduciary duties to
the stockholders, and their main obligation is to seek the maximum amount of
profits for the corporation.
19
17 Reformatted.
19 Premium White Cement Corp. v. Intermediate Appellate Court, 220 SCRA 103 (1993).
2. Has the Stakeholders Theory Been Formally Rejected in Philippine
Jurisdiction?
On the broad issue of whether the Stakeholder Theory no longer has any formal
application in Philippine jurisdiction, the answer is easier to give: Definitely not!
It must be recalled that it was not the SEC that ushered the Stakeholder Theory
in the Philippines with the promulgation of the original SEC Code, but rather the
Bangko Sentral ng Pilipinas (BSP), with the promulgation a year earlier of a series of
circulars, starting with BSP Circular No. 283, series of 2001, that defined who the
stakeholders are in banking institutions and requiring of such institutions, their
Board and Management, to exercise a high degree of diligence, and not just the
diligence of a prudent man. The Supreme Court has, for more than a decade before
the issuance of the BSP Circulars on Corporate Governance, characterized banking
institutions as being vested with public interest, requiring of them, their Boards of
Directors and officers, the exercise of diligence of the highest order, not only to
their stockholders, but primarily to their clients, depositors and members of the
public who deal with their facilities.
In addition, the IC Code of Corporate Governance Principles and Leading
Practices, formally recognizes that the insurance business is imbued with public
interest,
20
and that as a custodian (sic) of public funds, insurance corporations and
insurance intermediaries shall ensure that their dealings with the public are always
conducted in a fair, honest, and equitable manner.
21
These principles adhere to the
Stakeholder Theory.
There is no doubt that the Stakeholder Theory, as a cornerstone of the regime
of corporate governance, is very much alive and well for the key banking and
insurance sectors of the Philippine capital market.
With the promulgation of the Revised CG Code, do we then take it that in all
other public companies, other than banking institutions, insurance companies, and
insurance intermediaries, the Stakeholder Theory is thereby rejected as the capstone
of corporate governance, with the affirmation that the maximization of shareholders
value becomes once again the rule of thumb in measuring the duties, responsibilities
and extent of personal liability of directors and officers of covered corporations?
It must be stated formally that with the clear dropping of the Stakeholder
Theory from the definition of Corporate Governance, and dropping of all references to
stakeholders under the Revised CG Code, there is a strong argument before courts
of law that the Stakeholder Theory as the legal basis of accountability for directors
and officers of covered companies (except for banks, insurance companies and
20 Sec. II(B)(4), IC Code of Corporate Governance.
21 Sec. V, IC Code of Corporate Governance.
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Cesar L. Villanueva
insurance intermediaries) can no longer be made to apply; and that a director of a
corporation holds a position of trust and as such, he owes a duty of loyalty to his
corporation. . . As corporate managers, directors are committed to seek the maximum
amount of profits for the corporation.
22
Nevertheless, it is our proposition that notwithstanding the substantial changes
effected in the Revised CG Code, the application of the Stakeholder Theory as a
cornerstone to determine the nature and extent of the duties, responsibilities, as
well as the personal liabilities of directors and officers of all public companies,
continues to be a viable doctrine.
Firstly, the official and unofficial pronouncements coming out of the responsible
officers of the SEC do not indicate that they are pursuing a new corporate governance
regime that rejects the Stakeholder Theory. Commissioner Raul J. Palabrica (who is
credited to be the main author behind the revisions), writes in his column that the
coverage of the Revised CG Code continues to be the same as under the original
SEC Code, and that
The common denominator of these companies is they solicit
investments from the public to help sustain their operation. Hence, their
activities are considered imbued with public interest.
The code consists of compulsory and recommendatory guidelines
for the protection of the interests of the stockholders and other investors
of covered companies.
23
In other words, the coverage of the Revised CG Code for public companies
continues to acknowledge that it is the nature of the business enterprises of the
covered companies (and not just their corporate medium) that imbues them with
public interest. This confirms that it is not just the shareholders who fall within
strictly intra-corporate relationships and are affected by the operations of the public
companies, but also those who have invested in the companies in some other form
(such as the case of policy holders, depositors, etc.), who receive protection under a
stricter corporate governance regime. This is affirmed in Article 2 of the Revised
CG Code, which provides as part of the Rules of Interpretation that
B) ALL DOUBTS OR QUESTIONS THAT MAY ARISE IN THE INTERPRETATION
OR APPLICATION OF THIS CODE SHALL BE RESOLVED IN FAVOR OF
PROMOTING TRANSPARENCY, ACCOUNTABILITY AND FAIRNESS TO THE
STOCKHOLDERS AND INVESTORS OF THE CORPORATION.
24
The only problem created by the total dropping of the Stakeholder Theory
under the provisions of the Revised CG Code is that it has effectively limited the
22 Prime White Cement Corp. v. Intermediate Appellate Court, 220 SCRA 103, 110-111 (1993).
23 Philippine Daily Inquirer, 03 July 2009, at p. B5; emphasis supplied.
coverage of stakeholders to those who have direct investments in public
companies, similar to the financial involvement of stockholders, such as the case of
depositors and other debt-holders of banking institutions, policy holders and debt-
holders of insurance companies, and plan-holders of pre-need companies. All other
stakeholders who do not have a direct financial investment in the companies, such
as management and employees, customers, the community site, etc., are deemed to
have no direct interest in the corporate enterprise, and the only manner by which
they can sustain a legal standing as stakeholders is to prove that they pertain to the
public interest coverage of the particular covered corporation upon which they
seek to demand compliance with corporate governance principles.
The net result of the revision effected under the Revised CG Code is to
effectively narrow the coverage of who can claim to be stakeholders of a public
company, to a commercial end that the directors and officers of a public company
owe a special duty to stockholders and other similar investors in the company to
maximize profits for the long-term success of the corporation.
Secondly, the revisions effected by the SEC under the final terms of the Revised
CG Code may be taken to mean that the SEC has dropped all reference to
stakeholders, not as a rejection of the Stakeholder Theory, but rather as a recognition
that primary jurisdiction over the covered corporations pertains primarily to the
corporate medium and the legal relationship that is created (i.e., the intra-corporate
relationship); and that the underlying business enterprise is not for the SEC to
supervise, but by the proper government agency so tasked under its charter.
For example, although all banks and insurance companies can only be operated
under a corporate medium, nevertheless, their underlying operations are primarily
under the control and/or supervision not by the SEC, but by the BSP and the IC,
respectively. It may be reckoned therefore that with the current version of the Revised
CG Code, the SEC has taken the position that it is the government agency tasked
with control and/or supervision of the industry that it is rightly vested with power,
and obviously it is in the best position to define the terms of the Stakeholder Theory
and determine those who are deemed to fall with the coverage of stakeholders.
In other words, the SEC has defined the meaning and coverage of Corporate
Governance under the Revised CG Code within the parameters that are clearly within
its administrative jurisdiction, i.e., within the intra-corporate relationships of every
covered corporation:
(a) Between the SEC and the company, represented by its Board of Directors;
(b) Between the Board of Directors and the stockholders;
(c) Between the Board of Directors and Management.
Within the realm of its special administrative jurisdiction, the SEC has, through
the Revised CG Code, defined the meaning and essence of Corporate Governance
for public companies in the manner and term it knows best the maximization of
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Cesar L. Villanueva
shareholders value: Corporate Governance the framework of rules, systems and
processes in the corporation that governs the performance by the Board of Directors
and Management of their respective duties and responsibilities to the stockholders.
25
It has described the General Responsibility of the Boards of Directors of covered
corporations within such parameters: It is the Boards responsibilities to foster the
long-term success of the corporation, and to sustain its competitiveness and
profitability in a manner consistent with its corporate objectives and the best interests
of its stockholders.
26
The terms of the Revised CG Code indicate that the code recognizes, apart
from the stockholders of covered corporations, other stakeholders similarly situated
investors, in line with its recognition that under the Securities Regulation Code
(SRC), it is the government agency that has been given direct supervision over public
companies, for the protection of stockholders and other debt- and securities-holders,
thus
All doubts or questions that may arise in the interpretation or
application of this Code shall be resolved in favor of promoting
transparency, accountability and fairness to the stockholders and
investors of the corporation;
27
To ensure a high standard of best practice for the corporation and
its stockholders, the Board should conduct itself with honesty and
integrity in the performance of, among others, the following duties
and functions: x x x Establish and maintain an investor relations
program that will keep the stockholders informed of important
developments in the corporation. If feasible, the corporations CEO
or chief financial officer shall exercise oversight responsibility over
this program.
28
The point being made is that the formal dropping of the Stakeholder Theory under
the Revised CG Code should not be construed to mean that the SEC, as the supervising
agency over all corporations in the Philippines, has rejected its application in our
jurisdiction, but that it leaves it to the best judgment of the proper government agency of
the particular industry or business sectors having jurisdiction to define the nature and
extent of how they wish to adopt such theory. As the SEC has defined principles of Corporate
Governance within the medium of public companies to cover the duties and obligations
of the Board of Directors and Management to mean the maximization of the value of the
investments of shareholders and other investors, so therefore other agencies, such as the
BSP and the IC, have the right to so define the parameters of what constitute good corporate
25 Art. 1(a), Revised CG Code.
26 Art. 3(F)(1), Revised CG Code.
27 Art. 2(B) (on Rules of Interpretation), Revised CG Code.
28 Art. 3(F)(2), Revised CG Code.
governance within their industries and sectors that best suit the Stakeholder Theory
to their own specific circumstances.
This approach that the corporate medium, apart from the underlying business
enterprise, is not deemed to be vested with public interest beyond those that have a
formal or commercial tie to it by way of equity or debt investment seems to be in
conformity with the SECs mandate contained in its sub-charter, namely Presidential
Decree No. 902-A, which holds that:
WHEREAS, in line with the governments policy of
encouraging investments, both domestic and foreign, and more
active public participation in the affairs of private corporations
and enterprises through which desirable activities may be
pursued for the promotion of economic development; and, to
promote a wider and more meaningful equitable distribution
of wealth, there is a need for an agency of the government to
be invested with ample powers to protect such investment (sic)
and the public;
WHEREAS, to achieve these national objectives, it is necessary to
reorganize and restructure the Securities and Exchange Commission to
make it a more potent, responsive and effective arm of the government
to help in the implementation of these programs and to play a more
active role in nation-building;
It also means that the SEC has retreated (when compared to its original stance
under the original SEC Code) from a positive role as the government agency that
could imbue the corporate medium with the constitutional precept that although we
recognize the institution of private ownership and property rights and the
indispensable role of the private sector,
29
we nevertheless declare that property
bears a social function, and all economic agents shall contribute to the common
good, and always subject to the duty of the State to promote distributive justice
and to intervene when the common good so demands.
30
Thirdly, and perhaps the more important aspect when it comes to corporate
practitioners and their clientele, is that apart from the language of the original SEC Code,
the Supreme Court has in the field of jurisprudence, began to craft a doctrine of
Corporate Responsibility that recognizes the existence of the duties and obligations of
corporations, their Boards and Management, to sectors of society (apart from their
shareholders) who are affected by their operations.
Fairly recently, in Professional Services, Inc. v. Court of Appeals,
31
the Supreme Court
held a hospital corporation liable for the medical malpractice or professional
29 Sec. 20, Art. II, 1987 Constitution.
30 Sec. 6, Art. XII, 1987 Constitution.
31 544 SCRA 170, 182 (2008).
5 2 IBP JOURNAL
Cesar L. Villanueva
negligence of a physician who was a member of its medical staff, thus
The challenged Decision also anchors its ruling on the doctrine of
corporate responsibility. The duty of providing quality medical service
is no longer the sole prerogative and responsibility of the physician. This
is because the modern hospital now tends to organize a highly-
professional medical staff whose competence and performance need
also to be monitored by the hospital commensurate with its inherent
responsibility to provide quality medical care. Such responsibility
includes the proper supervision of the members of its medical
staff. Accordingly, the hospital has the duty to make a reasonable
effort to monitor and oversee the treatment prescribed and
administered by the physicians practicing in its premises.
32
Unfortunately, the term doctrine of corporate responsibility was used in Professional
Services, Inc., to mean corporate negligence doctrine . . . These special tort duties
arise from the special relationship existing between a hospital or nursing home and
its patients, which are based on the vulnerability of the physically or mentally ill
persons and their inability to provide care for themselves.
33
And that is the essence
of what is wrong under the regime of the Revised SEC Code: the Stakeholder Theory
embodied in the original SEC Code was put to death too young in its life, even
before it could be properly treated and allowed to bloom under Philippine corporate
jurisprudence!
In our book on Corporate Governance, we have discussed at length the
shortcomings of the Stakeholder Theory and the pitfalls that faced the SEC in adopting
it formally, but I certainly had not advocated its deletion. In a developing country
like ours where the majority of the resources available to our people are in the
hands of corporate entities (and also in the hands of government corporations), the
great challenge was, and continues to be, that of evolving a doctrine that imbues the
corporate medium with the burden of a social function, and as an economic agent which
should contribute to the common good.
With the SEC retreating from that challenge under the Revised SEC Code,
the great social experiment in imbuing Philippine public companies with a social
function that goes beyond the interests of their investors has been orphaned into
the other fields outside of Philippine Corporate Law. And I always thought that the
essence of Corporate Governance was in the term corporate.
32 Ibid, at p. 182.
33 Ibid, at p. 182, footnote 7.
System of Independent Directors
Article 3(A) of the Revised CG Code strengthens the system of independent
directors for Philippine public companies, as it provides that
ALL COMPANIES COVERED BY THIS CODE SHALL HAVE AT LEAST TWO
(2) INDEPENDENT DIRECTORS OR SUCH NUMBER OF INDEPENDENT
DIRECTORS THAT CONSTITUTES TWENTY PERCENT (20%) OF THE
MEMBERS OF THE BOARD, WHICHEVER IS LESSER, BUT IN NO CASE
LESS THAN TWO (2). ALL OTHER COMPANIES ARE ENCOURAGED TO
HAVE INDEPENDENT DIRECTORS IN THEIR BOARDS.
34
In Philippine Corporate Law, there are now two systems of promoting good
corporate governance, but ensuring that there is a check on the dominant role of the
majority stockholders.
First is the system of cumulative voting mandatory for all stock corporations
under Section 24 of the Corporation Code,
35
which makes it mathematically possible
for minority shareholders to pool their voting powers to a pre-computed number of
nominees to ensure that they would have minority representation in the Board of
Directors. Consonant with this principle, Section 28 of the Corporation Code
provides that the majority stockholders have no power to remove a director elected
by cumulative voting except for cause.
36
Second is the system of independent directors originally introduced for public
companies under Section 38 of the Securities Regulation Code for all public companies
to have at least two (2) independent directors or such independent directors shall
constitute at least twenty percent (20%) of the members of such board, whichever is
the lesser. The section defines an independent director as a person other than an
officer or employee of the corporation, its parent or subsidiaries, or any other
individual having a relationship with the corporation, which would interfere with
35 Sec. 24, Corporation Code: At all elections of directors or trustees, there must be present, either in person or
by representative authorized to act by written proxy, the owners of the majority of the outstanding capital stock
x x x and said stockholder may vote such number of shares for as many persons as there are directors to be
elected or he may cumulate said shares and give one candidate as many votes as the number of directors to be
elected multiplied by the number of his shares shall equal, or he may distribute them on the same principle
among as many candidates as he shall see fit; Provided, That the total number of votes cast by him shall not
exceed the number of shares owned by him as shown in the books of the corporation multiplied by the whole
numbers of directors to be elected.
36 Sec. 28, Corporation Code: Any director or trustee of a corporation may be removed from office by a vote of
the stockholders holding or representing two-thirds (2/3) of the outstanding capital stock, or if the corporation
be a non-stock corporation, by a vote of two-thirds (2/3) of the members entitled to vote: x x x Provided, That
removal without cause not be used to deprive minority stockholders or members of the right of representation
to which they may be entitled under Section 24 of this Code.
5 4 IBP JOURNAL
Cesar L. Villanueva
the exercise of independent judgment in carrying out the responsibilities of a
director.
37
In our book, we have discussed the shortcomings of the system of independent
directors under the aegis of the original SEC Code which had formally adopted the
Stakeholder Theory; that since all directors of a public company, whether executive,
non-executive, minority representing, or independent director, are now bound with
duties not only towards the stockholders but all other stakeholders, then the necessity
for independent directors did not have a good case.
With the apparent abandonment under the Revised CG Code of the Stakeholder
Theory, and in fact an affirmation in its various provisions that the duties and
responsibilities of directors and management of public companies is owned to
stockholders and other investors, then the strengthening of the role of independent
directors, as occupying a quasi-public position (i.e., one that represents the public
good in Board proceedings) has taken a more meaningful role.
Manual of Corporate Governance and the Penalty Provision
Under Article 9 of the Revised CG Code (on Commitment to Good Corporate
Governance), the SEC has continued with the requirement under the original SEC
Code
38
that covered corporations must formally submit a manual of corporate
governance on which they shall establish and implement their corporate governance
rules in accordance with this Code.
But unlike the original SEC Code which provided that failure to submit the
manual is the only infraction that is penalized by a fine, the Revised CG Code under
its Article 11 on Administrative Sanctions has expanded the penalty coverage to
all violations of the Code, thus:
Article 11: Administrative Sanctions
A fine of not more than Two Hundred Thousand Pesos (Php200,000)
shall, after due notice and hearing, be imposed for every year that a
covered corporation violates the provisions of this Code, without
prejudice to other sanctions that the Commission may be authorized
to impose under the law; provided, however, that any violation of
the Securities Regulation Code punishable by a specific penalty shall
37 Section 38 of the SRC is the only other section which treats of independent directors, and requires that the
board of an exchange to include no less than fifty one percent (51%) of the remaining members of the board
to be comprised of three (3) independent directors and persons who represent the interests of issuers, investors,
and other market participants, who are not associated with any broker or dealer or member of the Exchange for
a period of two (2) years prior to his/her appointment, and that [n]o officer or employee of a member, its
subsidiaries or affiliates or related interests shall become an independent director.
38 Sec. IX, original SEC Code: Failure to adopt a manual of corporate governance as specified therein shall
subject a corporation, after due notice and hearing, to a penalty of Php100,000.00.
be assessed separately and shall not be covered by the
abovementioned fine.
39
Fines and other penalties imposed by the SEC are serious matters, not only
because of the pecuniary repercussions, but more importantly under the Corporation
Code,
40
and in the Revised SEC Code itself,
41
a violation may constitute a ground
for the disqualification of a director, or constitute as proper cause, for his removal
by the requisite vote of stockholders.
42
Although there is no doubt that the failure to comply with the requirement of
filing the manual is punishable under Article 11 of the Revised CG Code, it seems
difficult to see how any other violation thereof may be properly punished by a fine
of Php200,000 for every year that a covered corporation violates the provisions of
this Code.
Firstly, instead of the fine being imposed on every violation of the provisions of
the Revised CG Code, the penalty that is imposable is limited to Php200,000 every
year. This would come to the dubious end that a covered corporation may commit
various infractions under the Code, and only be liable to a maximum penalty of
Php200,000 per year.
Secondly, corporate governance principles and best practices are primarily to
be followed or practiced by the directors and key officers of a covered corporation,
and the infraction would be a personal liability on their part. And yet the provisions
of Article 11 of the Revised CG Code apply the penalty only to a violation by the
covered corporation, and not on the director or officer guilty of an offense under
the Code.
40 Section 27 of the Corporation Code: SEC. 27. Disqualification of directors, trustees or officers. No person convicted
by final judgment of an offense punishable by imprisonment for a period exceeding six (6) years, or a violation
of this Code, committed within five (5) years prior to the date of his election or appointment, shall qualify as
director, trustee or officer of any corporation. (n)
41 Article 3(E)(1)(iv) of the Revised SEC Code provides The following shall be grounds for the permanent
disqualification of a director: x x x (iv) Any person who has been adjudged by final judgment or order of the
Commission, court, or competent administrative body to have willfully violated, or willfully aided, abetted,
counseled, induced or procured the violation of any provision of the Corporation Code, Securities Regulation
Code or any other law administered by the Commission or BSP, or any of its rule, regulation or order;
Article 3(E)(2)(iii) of the Revised SEC Code provides that The Board may provide for the temporary
disqualification of a director for any of the following reasons: x x x (iii) Dismissal or termination for cause as
director of any corporation covered by this Code. The disqualification shall be in effect until he has cleared
himself from any involvement in the cause that gave rise to his dismissal or termination.
42 Section 28 of the Corporation Code: SEC. 28. Removal of directors or trustees. Any director or trustee of a
corporation may be removed from office by a vote of the stockholders holding or representing two-thirds (2/3)
of the outstanding capital stock . . . Provided, That removal without cause not be used to deprive minority
stockholders or members of the right of representation to which they may be entitled under Section 24 of this
Code. (n)
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Cesar L. Villanueva
Thirdly, although the non-filing of the manual on corporate governance
constitutes a situation that a covered corporation violates the provisions of this
Code simply because the original provisions of the original SEC Code specifically
covered only such violation, it is not clear what other violations may be punishable
under Article 11 of the Revised CG Code.
Atty. Gerard M. Lukban, the SEC Secretary, was quoted as saying that The
previous Code had provisions that use may. . . Here some were changed to shall
so they are no longer just recommendatory.
43
That would mean that every provision
of the Code that imposes an obligation with the use of the word shall would be a
violation of the Revised CG Code that would be punishable with the find under
Article 11 thereof.
For example, under Art. 2(F), it is provided that
THE BOARD SHOULD FORMULATE THE CORPORATIONS
VISION, MISSION, STRATEGIC OBJECTIVES, POLICIES AND
PROCEDURES THAT SHALL GUIDE ITS ACTIVITIES, INCLUDING
THE MEANS TO EFFECTIVELY MONITOR MANAGEMENTS
PERFORMANCE.
44
Obviously, compliance with the above-indicated duty may find its expression
in the manual of corporate governance that a covered corporation submits to the
SEC. But if the manual duly submitted does not contain one or some of the items
enumerated, or what are submitted are not effective or complete, does that constitute
a violation of the Revised CG Code, triggering the imposition, after notice and
hearing, of the Php200,000 fine? Who is to judge what is effective?
Another example would Article 6(B) of the Revised CG Code which reads
B) THE BOARD SHOULD BE TRANSPARENT AND FAIR IN THE
CONDUCT OF THE ANNUAL AND SPECIAL STOCKHOLDERS
MEETINGS OF THE CORPORATION. THE STOCKHOLDERS
SHOULD BE ENCOURAGED TO PERSONALLY ATTEND SUCH
MEETINGS. IF THEY CANNOT ATTEND, THEY SHOULD BE
APPRISED AHEAD OF TIME OF THEIR RIGHT TO APPOINT A
PROXY. SUBJECT TO THE REQUIREMENTS OF THE BYLAWS,
THE EXERCISE OF THAT RIGHT SHALL NOT BE UNDULY
RESTRICTED AND ANY DOUBT ABOUT THE VALIDITY OF A PROXY
SHOULD BE RESOLVED IN THE STOCKHOLDERS FAVOR.
45
43 Business World, 24 June 2009.
In a situation where there are issues in the implementation of by-law provisions
on proxy, and the Board, upon advice of counsel, takes a position which is deemed
restrictive of the right of a stockholder, would that trigger the imposition of the
penalty under Article 11 of the Code? Would the fine be imposable against the
covered corporation or against the members of the Board? Who is to say what is
unduly restrictive?
If we were to presume that the clear intention under Article 11 is that the
penalty imposed would be personally against the offending director or officer, it
would have a chilling effect on the exercise of business judgment on the part of the
Board of Directors, and would even discourage qualified professional directors to
accept appointment to public companies simply because they are not certain exactly
what action or inaction would constitute punishable offense under said provision.
There is a similar all-encompassing penalty clause under Section 144 of the
Corporation Code,
46
and our comments on whether an imposition of penalty may
be achieved thereunder are worth quoting in this paper:
Looking at the language of Section 144 of the Corporation
Code, it seems all-encompassive in nature as to impose
criminal liability for [v]iolations of any of the provisions of
this Code or its amendments not otherwise specifically
penalized therein. . . .
It is difficult to construe Section 144 of the Corporation
Code to mean that all non-compliance with the provisions
of the Corporation Code would be criminally punishable.
For example, under Section 26 of the Corporation Code, it
is provided that within thirty (30) days after the election of
the directors, trustees and officers of the corporation, the
secretary, or any other officer of the corporation, shall submit
to the SEC, the names, nationalities and residences of the
directors, trustees and officers elected. If a corporate
secretary fails to comply with this provision, would he then
be subject to a criminal penalty under Section 144?
46 SEC. 144. Violations of the Code.Violations of any of the provisions of this Code or its amendments not otherwise specifically
penalized therein shall be punished by a fine of not less than one thousand (Php1,000.00) pesos but not more than
ten thousand (Php10,000.00) pesos or by imprisonment for not less than thirty (30) days but not more than five
(5) years, or both, in the discretion of the court. If the violation is committed by a corporation, the same may,
after notice and hearing, be dissolved in appropriate proceedings before the Securities and Exchange
Commission; Provided, That such dissolution shall not preclude the institution of appropriate action against the
director, trustee, or officer of the corporation responsible for said violation: Provided, further, That nothing in this
section shall be construed to repeal the other causes for dissolution of a corporation provided in this Code.
5 8 IBP JOURNAL
Cesar L. Villanueva
Such a construction would seem too harsh, and effectively
discourages competent and well-meaning individuals from
accepting positions within the corporate setting. It would
then make the corporation a very unattractive medium for
commerce.
x x x
In effect, the broad coverage of Section 144 is
meaningless since it is applicable only to Section 74 of the
Code. If that is the legal effect, then it could be argued that
the Legislature, when it enacted Section 144 of part of the
Corporation Code, had not intended it to be a practically
useless provision since the penal sanctions provided therein
could have effectively been stated in Section 74 if it is indeed
the only violation applicable to said provision. However, such
a position fails to consider that indeed Section 144 was meant
to be the over-all penal sanction under the Code, if and when
the Legislature deems it appropriate to impose a penal
sanction for violation thereof not only based on the current
provisions of the Code, but also its amendments in the
future.
It should also be noted that although a penal provision
like Section 144 is usual in special laws, nevertheless, the
implementation of the principle dura lex, sed lex to such penal
provisions under most special laws is without controversy
because the subject thereof is limited and the acts covered
therein are clearly defined. Such position cannot be equated
to Section 144, since the Corporation Code, indeed is a
code that necessary covers a broad subject and almost
innumerable acts.
47
47 VILLANUEVA, PHILIPPINE CORPORATE LAW (2001 ed.), at pp. 870 873.
ADR System for Public Companies
The Revised CG Code has introduced as one of the Duties and Functions of
the Board of Directors of a public company, the setting up of a system of dispute
resolution, thus:
F) Responsibilities, Duties and Functions of the Board
x x x
2. Duties and Functions
To ensure a high standard of best practice for the corporation and
its stockholders, the Board should conduct itself with honesty and
integrity in the performance of, among others, the following duties
and functions:
x x x .
J) Establish and maintain an alternative dispute resolution system
in the corporation that can amicably settle conflicts or differences
between the corporation and its stockholders, and the corporation
and third parties, including the regulatory authorities.
x x x .
48
The establishment of an alternative dispute resolution system as part of the
features of Philippine public companies is very laudable. The slow grind of the
Philippine judicial process which has discouraged investments in the Philippine market
has compelled even the Supreme Court to set up special commercial courts to handle
corporate cases and issue special rules of procedure. In addition, the Supreme Court
has formally adopted mediation proceedings that must be resorted to by the parties
before formal judicial proceedings can be pursued.
Perhaps the best way by which the SEC, being the government agency granted
control and supervision over corporate media, can further advance the way toward
an Alternative Dispute Resolution system for Philippine public companies is to set
up a formal ADR Panel that can have mandatory enforcement in matters pertaining
to conflicts or differences between corporations and their shareholders and investors.
In a study done for the Asian Development Bank on the ADR system of the
Philippines, it was determined that the most successful system is the Construction
Industry Arbitration Council (CIAC), which was mandated through the decree
48 Reformatted.
6 0 IBP JOURNAL
Cesar L. Villanueva
powers of Pres. Ferdinand Marcos, and has become a reliable manner of resolving
conflicts in the construction industry. The impetus behind the CIACs success lies in
two factors, namely, (a) that it was statutorily mandated, so that construction industry
players had no choice but to resort to arbitration and could not rely upon the slow
grind of judicial proceedings to stymie legitimate complaints or claims; and (b) the
arbitration process was being overseen by the construction industrys own experts
and leading advocates, who understood the business and technical nuances of the
industry.
Even well-trained RTC commercial court judges are really no match to the
expertise that SEC officers, corporate and business practitioners have on issues and
intricacies arising within the Philippine public companies system. Perhaps the SEC
may oversee the establishment and operation of the Public Companies Arbitration
Council and making resort to PCAC arbitration mandatory through the issuance
of a formal SEC memorandum, pursuant to its vast quasi-legislative powers under
Section 72 of the Securities Regulation Code, thus
SEC. 72. Rules and Regulations; Effectivity. - 72.1. This
Code shall be self-executory. To effect the provisions and
purposes of this Code, the Commission may issue, amend,
and rescind such rules and regulations and orders necessary
or appropriate, including rules and regulations defining
accounting, technical, and trade terms used in this Code,
and prescribing the form or forms in which information
required in registration statements, applications, and reports
to the Commission shall be set forth. For purposes of its
rules or regulations, the Commission may classify
persons, securities, and other matters within its
jurisdiction, prescribe different requirements for
different classes of persons, securities, or matters,
and by rule or order, conditionally or unconditionally
exempt any person, security, or transaction, or class
or classes of persons, securities or transactions, from
any or all provisions of this Code.
49
Failure on the part of the Commission to issue rules and
regulations shall not in any manner affect the self-executory
nature of this Code.
x x x
50
Conclusions
In our work on Philippine Corporate Governance, we have demonstrated that
authorities in other disciplines, particularly on Economics and Business Management,
have pointed out that the philosophical basis of the Stakeholder Theory was itself
not a perfected system that it was still a work-in-progress. Therefore, it was very
difficult under the original SEC Code to evolve a truly efficient system of corporate
governance adopting the Stakeholder Theory, as contrasted from the maximization
of shareholders value.
One of the fundamental issues arising under the original SEC Codes
stakeholder doctrine, apart from recognizing that the Boards of Directors of public
companies owe duties and obligations not just to the shareholders but to various
stakeholders who are affected by the companys business enterprise, was that the
original SEC Code found it difficult to provide a hierarchy of values by which directors
and Management of a covered corporation could properly measure compliance with
their varied duties to their stakeholders. In other words, the original SEC Code was
very good on broad principles ushering in the Stakeholder Theory, but was short on
particulars on how the directors were going to meet their duties and responsibilities
under such expanded constituencies.
We thought then that faced with such a challenge, it was ingenious for the SEC
to have provided in the original SEC Code that every covered corporation, in its
manual of corporate governance, was mandated to identify its considered stakeholders
and define the rights they may have against the company in the operation of its
business, thus
iv. Identify the corporations major and other stakeholders
and formulate a clear policy on communicating or relating
with them accurately, effectively and sufficiently. There
must be an accounting rendered to them regularly in order
to serve their legitimate interests.
Likewise, an investor relations program that reaches out
to all shareholders and fully informs them of corporate
activities should be developed. As a best practice, the
chief financial officer or CEO should have oversight of
this program and should actively participate in public
activities.
Under the aegis of such provisions in the original SEC Code, it would ensure
to covered companies that as the Stakeholder Theory is formally adopted into
Philippine jurisdiction, it did not turn out to be an open-ended affair where the
Boards of Directors of public companies were not quite sure of the extent of their
duties and responsibilities under a system of expanded constituencies, and be able
6 2 IBP JOURNAL
Cesar L. Villanueva
to define for themselves precisely what they considered to be the extent of the
rights of such identified stakeholders.
The afore-quoted provision, of course, no longer appears in the Revised CG
Code, for instead of being able to evolve the system of stakeholdership for Philippine
public companies, the SEC seems to have lost the heart and just decided to go back
to the old corporate maxim that the duty of the Board of Director of every corporation
is to maximize its profits.
What began as a bold venture into a cutting-edge Corporate Governance system
seems to have come to an end, at least insofar as the SEC is concerned. There was
no denying that adopting the Stakeholder Theory as the cornerstone of our system
of good corporate governance for Philippine public companies was no easy task; but
considering the scarce resources that we have in this country, most of it in the
corporate coffers, it was an adventure worth pursuing to a successful end.

SYMBOLIC SPEECH IN THE WORKPLACE
Symbolic Speech In The Workplace
Florin Ternal Hilbay*
Free speech is a term denoting that basket of doctrines in constitutional law
referring to the extent of the right of an individual, organization, or corporate entity
to engage in certain expressive or communicative activities in relation to the
government, any of its officers, any entity assuming public or quasi-public status or
any other matter that impacts public interest. As a core component of the Bill of
Rights, it is traditionally categorized as a tool that serves to calibrate the various
kinds of relationships that bind the individual and the State. A person may use free
speech to criticize the government
1
or religious beliefs,
2
to sell or advertise a product
3
or an idea,
4
compel the disclosure of information
5
or immunize oneself from
compelled disclosure,
6
read or disseminate dangerous ideas
7
or enjoy sexually
explicit expression,
8
and express oneself through various forms of art.
9
Being an
item of constitutional law, it is axiomatically regarded as forming part of the discourse
of the public, as opposed to its opposite heuristic, the private.
* ASSISTANT PROFESSOR & ENRIQUE CHAN PROFESSORIAL CHAIR IN LAW, UNIVERSITY OF THE PHILIPPINES, COLLEGE OF LAW.
A.B. (University of Santo Tomas), Ll.B. (University of the Philippines), Ll.M (Yale Law School). This Article is
an expanded work on the topic NUWHRAIN & Free Speech discussed in a lecture-forum titled Strike-Ing
Hairstyles: NUWHRAIN, Labor Rights & Free Speech sponsored by the Institute of Human Rights on 8 July
2009. I thank Prof. Barry Gutierrez for the invitation to that lecture-forum. I thank Mary Anne Raniola and
Tracy Ong for their assistance.
1 See United States v. Bustos 37 Phil. 731 (1918); Soliven v. Makasiar, 167 SCRA 393 (1988); Primicias v. Fugoso, 80
Phil. 75 (1948); Reyes v. Bagatsing, 210 Phil. 457 (1983); Bayan v. Ermita, 488 SCRA 226 (2006); Cox v. Louisina,
379 U.S. 536 (1965); People v. Perfecto, 43 Phil. 887 (1922).
2 See MVRS Publications, Inc., et al. v. Islamic Dawah Council of the Philippines, Inc., et. al., 396 SCRA 210 (2003);
Iglesia ni Cristo v. Court of Appeals, 259 SCRA 529 (1996); Cantwell v. Connecticut, 310 U.S. 296 (1940); American
Bible Society v. City of Manila, 101 Phil. 386 (1957). See also Ignacio v. Ela, 99 Phil. 346 (1956),
(Concepcion, dissenting).
3 See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Central Hudson Gas &
Electric Co. v. Public Service Commission, 447 U.S. 557 (1980); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85
(1977); Thompson v. Western States Medical Center, 535 U.S. 357 (2002); Lorillard Tobacco Corp. v. Reilly, 533 U.S.
525 (2001); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
4 See Eastern Broadcasting Corporation v. Dans, 137 SCRA 628 (1985); Adiong v. COMELEC, 207 SCRA 712 (1992);
Guingging v. Court of Appeals, 471 SCRA 196 (2005); Gonzales v. Commission on Elections, 137 SCRA 471 (1969);
Chavez v. Gonzales, 545 SCRA 441 (2008); Soriano v. Laguardia, 587 SCRA 79 (2009); Terminiello v. Chicago, 337
U.S. 1 (1949); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Abrams v. United States, 250 U.S. 616 (1919).
5 See Valmonte v. Belmonte, 170 SCRA 256 (1989).
6 See Akbayan v. Aquino, 558 SCRA 468 (2008); Chavez v. PCGG, 360 Phil. 133 (1998); Neri v. Senate, 564 SCRA
152 (2008), Resolution on the Motion for Reconsideration (25 March 2008).
7 See Gitlow v. United States 268 U.S. 652 (1925), Holmes J., dissenting: Every idea is an incitement. It offers itself
for belief, and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the
movement at its birth. The only difference between the expression of an opinion and an incitement is the
speakers enthusiasm for the result. See also New York Times v. United States, 403 U.S. 713 (1971); Whitney v.
California, 274 U.S. 357 (1927).
8 See Stanley v. Georgia, 394 U.S. 557 (1969); Ashcroft v. Free Speech Coalition, 535 U.S. 564 (2002); American
Booksellers Association v. Hudnut, 771 F.2s 323 (7
th
Cir. 1985); Schad v. Borough of Mount Ephraim, 452 U.S. 61(1981);
Gonzales v. Kalaw-Katigbak, 137 SCRA 717 (1985).
9 See Burtsyn v. Wilson, 343 U.S. 495 (1952); People vs. Go Pin, 97 Phil 418 (1955); Gonzales v. Kalaw Katigbak, supra;
Iglesia ni Cristo v. Court of Appeals, supra note 3; National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).
6 4 IBP JOURNAL
Florin T. Hilbay
The reference to the dual categories of the public and the private as heuristic
tools is meant to underscore the reality that, from a certain perspective, these baskets
are in fact not so separate from each other,
10
and that, instead of being separately
sealed or hermetically tight compartments, they are, in fact, quite porous and
intertwined. The law on contracts, for example, falls under the category of the
private and yet, no sooner do we start reading the provisions of the Civil Code than
we realize that the law on contracts is an amalgamation of intensely public policies
regulating entry, exit, as well as the terms and conditions of private contracting.
11
The more we look at those private law subjects in law school, the more we realize
that they share more characteristics with public law than we have been made to
realize by the artificial categories of the curriculum. Ultimately, it turns out that
what we can do privately is parasitic on policies that always turn out to be directed
towards some public objective.
This reality is even more true in the case of labor law, which, among the general
categories of law taught in law schools and as a separate subject in the bar
examinations, is of a more recent vintage. This is evident in the provisions of the
Civil Code, which, as revised in 1950, had a new section on Contract of Labor
12
10 See Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. Pen. L. Rev. 1349
(1982).
11 A case in point is the Family Code, a subject taught as part of the civil law on private relations. But very little
in the Family Code is private in the traditional sense that it is the parties that are given the right to choose. To
be sure, most of the provisions in the code are state policies on property relations as well as entry and exit
mechanisms. Those aspects of family life that may fall under the category of private choiceselection of spouse,
number of children, decision to cohabitare actually not regulated by the code.
12 ARTICLE 1700. The relations between capital and labor are not merely contractual. They are so impressed
with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject
to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.
ARTICLE 1701. Neither capital nor labor shall act oppressively against the other, or impair the interest or
convenience of the public.
ARTICLE 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the
safety and decent living for the laborer.
ARTICLE 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever,
shall be valid.
ARTICLE 1704. In collective bargaining, the labor union or members of the board or committee signing the
contract shall be liable for non-fulfillment thereof.
ARTICLE 1705. The laborers wages shall be paid in legal currency.
ARTICLE 1706. Withholding of the wages, except for a debt due, shall not be made by the employer.
ARTICLE 1707. The laborers wages shall be a lien on the goods manufactured or the work done.
ARTICLE 1708. The laborers wages shall not be subject to execution or attachment, except for debts incurred
for food, shelter, clothing and medical attendance.
ARTICLE 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer.
ARTICLE 1710. Dismissal of laborers shall be subject to the supervision of the Government, under special
laws.
ARTICLE 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of
or injuries to their laborers, workmen, mechanics or other employees, even though the event may have been
purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the
course of the employment. The employer is also liable for compensation if the employee contracts any illness
or disease caused by such employment or as the result of the nature of the employment. If the mishap was due
to the employees own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable
for compensation. When the employees lack of due care contributed to his death or injury, the compensation
shall be equitably reduced.
ARTICLE 1712. If the death or injury is due to the negligence of a fellow worker, the latter and the employer
shall be solidarily liable for compensation. If a fellow workers intentional or malicious act is the only cause of
the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not
exercise due diligence in the selection or supervision of the plaintiffs fellow worker.
See also Section 3 (Contract for A Piece of Work) of the same title and chapter, Art.1713 et seq.
appearing under the chapter on Work and Labor, as part of Title VIII, which
refers to Lease. While the category has an undercurrent of political incorrectness
because of its objectifying tendency, it stands as a powerful symbol of what the
relationship is all about. This is understandable given the history of labor law
legislation in the Philippines, which, just like most other areas of law in the Islands,
cannot be historicized without reference to its status as a colony.
The relationship between labor and capital under the Spanish regime was a
matter of civiland therefore, privatelaw.
13
Just like any other item or good in the
market, labor was for sale or lease as a form of property held by the laborer which
can be bought by those who owned capital. This relationship was but a manifestation
of the classical liberal model of the market economy in the 19
th
century, where self-
interested players in the system were presumed capable enough to take care of
themselves because they were rational. Under the law on civil relations, the
relationship between labor and capital was a matter of contract and stipulations
between the parties were law between them. This meant, first, that the State was
under obligation to respect the parties agreement which is protected by the non-
impairments clause in the form of a constitutional norm
14
or a statutory right; and
second, that in case of disagreement, the State was bound to enforce the contractual
stipulations agreed upon by the parties.
The most famous judicial statement embodying the philosophy behind the
relationship between labor and capital is the case of Lochner v. New York,
15
where the
U.S. Supreme Court declared unconstitutional a state criminal law regulating such
relationship through the device of imposing maximum hours. According to the
Court, the right to purchase or to sell labor is part of the liberty protected by the
13 See Spanish Civil Code of 1889, Book IV (Obligations & Contracts), Title VI (Contracts of Lease), Chapter III
(Work & Labor). Section I, on Labor of Servants and Wage Earners provides
Art. 1583. This class of service may be contracted for a definite or indefinite period, or for any specific work.
A hiring for life is void.
Art. 1584. A domestic servant hired for a definite period and to be employed in the personal service of his
master, or of the family of the latter, may leave the service or be discharged before the expiration of the term;
but if the master dismisses the servant without sufficient cause, he shall indemnify him by paying him fifteen
days wages in addition to the wages due.
Art. 1585. In addition to the provisions contained in the preceding articles with respect to masters and servants
those of the special laws and ordinances shall be observed.
Art. 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time or for certain work
cannot leave or be dismissed without just cause, before the fulfillment of the contract.
Art. 1587. The dismissal of the servants, mechanics, artisans, and other hired laborers to whom the preceding
articles refer gives the right to dispossess them of any implements or buildings of which they may have
possession by reason of their duties.
14 CONST., art. III, 10: No law impairing the obligation of contracts shall be passed. See Home Building and Loan
Association v. Blaisdell, 290 U.S. 398 (1934); Ortigas & Co. Limited Partnership v. Feati Bank And Trust Co., 183 Phil.
176 (1979).
15 198 U.S. 45 (1905).
6 6 IBP JOURNAL
Florin T. Hilbay
Due Process Clause,
16
and thus within the realm of private choice and protected
from the intrusive force of public regulation.
Events in the United States following the First World War, specifically the so-
called Great Depression and the response to itThe New Dealmade policymakers
rethink their confidence in the operation of laissez faires invisible hand. The industrial
revolution created a lot of wealth that no society had ever produced before, but it
did little to alleviate the sweatshop system and the institutionalized slavery it produced.
This is why, when the market failed, people started looking up to the government
for relief. Prolonged recession meant that the market, which was before entitled to
full faith and credit, sometimes could not correct itself fast enough, if at all, to
dampen and reverse the staggering human cost of an economic downturn. Roosevelts
New Deal increased the size of government and introduced the administrative state
whose hallmark was the regulatory bureaucracy that was meant to police the target
concerns of the governmentagriculture, securities, banking, infrastructure, and
labor.
17
The notion of a liberal state was a creature of the deep mistrust of the kind of
institutions that ruled peoples lives prior to the rise of the ideal of public
accountability. The history of authoritarianism, monarchism, and theocracy in Europe
made it essential for those who believed in basic individual freedomslife, liberty,
and propertyto argue for statutes enumerating constraints against the use of public
power. This fixation with the dangers inherent in governments of unlimited powers
directed the focus of constitution-builders in structural limitations like the bill of
rights. Through a system of rights, the government itself became the protector of
liberty and the guarantor of fairness. Through the principle of universality of rights,
the liberty of those with substantial and minimal amounts of property became
concerns subject to the equal consideration of governments. Which is why, from
this perspective, Lochner simply operationalized the effects of a certain philosophical
tradition through the intervention of an activist court that sought to bar the
government from experimenting on solutions to the economic crisis.
This is also why, from a theoretical standpoint, the events of the 1930s were
revolutionary insofar as it meant the blurring of the lines between the public and the
private or a recasting of the relationship between the government and the people.
Apparently, the Americans found out that the very institution that they could not
trust was the very same institution they needed to trust if they wanted to respond
16 Id, at 57: The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words.
There is no reasonable ground for interfering with the liberty of person or the right of free contract, by
determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are
not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able
to assert their rights and care for themselves without the protecting arm of the state, interfering with their
independence of judgment and of action. They are in no sense wards of the state. Viewed in the light of a purely
labor law, with no reference whatever to the question of health, we think that a law like the one before us
involves neither the safety, the morals, nor the welfare, of the public, and that the interest of the public is not in
the slightest degree affected by such an act.
17 See Robert S. McElvaine, THE GREAT DEPRESSION (1993); William E. Leuchtenburg, FRANKLIN D. ROOSEVELT & THE
NEW DEAL 1932-1940 (1963).
from the shock of a depression. In the specific case of labor, the effect was the
creation of labor law as a specific area of legal discoursewith a separate jurisprudence
and a separate set of experts. This event meant that the relationship between labor
and capital would no longer be a matter of private law; instead, it would now assume
a hybrid character whose various aspects are subject to both private choice and
public policy.
A Dangerous Equivalence
The NUHWRAIN Decision. I introduce these remarks in the context of the
Supreme Courts decision in NUWHRAIN v. Court of Appeals,
18
which upheld the
respondent courts decision terminating the services of union officers for violation
of the hotels grooming standards.
19
The case grew out of a labor dispute between
NUWHRAIN and the management of Dusit Hotel. In 2000, the parties were
negotiating a collective bargaining agreement. When a deadlock ensured,
NUWHRAIN decided to file a notice of strike. Conciliation proceedings also failed,
thereafter followed by a strike vote by the union. In the meantime, and within the
mandatory 30-day cooling off period, some union members decided to go to work
sport[ing] closely cropped hair or cleanly shaven heads.
20
The response of Dusit
Hotel was to prevent these workers from entering the premises on the ground that
they were in violation of the hotels grooming standards.
21
In retaliation, the union
staged a picket outside the hotel premises.
22
Dusit Hotel responded by preventing
other union members from entering the hotel, causing these workers to join the
picket.
23
Suspension orders were then issued by the hotel in relation to the following
charges: violation of the duty to bargain in good faith; illegal picket; unfair labor
practice; violation of the hotels grooming standards; illegal strike; and commission
of illegal acts during an illegal strike.
24
Eventually, the hotel terminated the services
of twenty-nine (29) union officers and sixty-one (61) members, suspended eighty-one
(81) employees for thirty days, forty-eight (48) employees for fifteen days, four (4)
employees for ten days, and three (3) employees for five days.
25
The Supreme Court divided the issues into two, focusing on the question of
whether or not the following acts were legal: first, reporting for work with bald or
cropped hairstyle (18 January 2002); and second, the picketing of the hotel premises
18 570 SCRA 598, G.R. No. 163942 (11 November 2008). The full title of the case is National Union of Workers
in the Hotel Restaurant and Allied Industries (NUWHRAIN-APL-IUF) Dusit Hotel Nikko Chapter v. Court of
Appeals.
19 More precisely, the decision of the Court of Appeals was affirmed insofar as the union officers were concerned
and modified with respect to the union members, who were reinstated without backwages.
20 Supra note 19, at 604.
21 Id.
22 Ibid.
23 Ibid.
24 Ibid.
25 Id, at 605.
6 8 IBP JOURNAL
Florin T. Hilbay
(26 January 2002). For purposes of analyzing the case, I shall focus on the first
issue, which, in any case, is determinative of how the entire litigation turns. The
Court listed down four justifications for upholding the dismissal of the employees
First, the Unions violation of the hotels grooming standards was clearly a
deliberate and concerted action to undermine the authority of and to embarrass the
Hotel and was, therefore, not a protected action.
26
Second, the Unions concerted action which disrupted the Hotels operations
clearly violated the CBAs No Strike, No Lockout stipulation.
27
Third, the Union officers and members concerted action to shave their heads
and crop their hair not only violated the hotels grooming standards but also violated
the unions duty and responsibility to bargain in good faith.
28
Fourth, the Union failed to observe the mandatory 30-day cooling off period
and the seven-day strike ban before it conducted the strike on 18 January 2002.
29
The Doctrinal Consequences of NUHWRAIN. Even from the standpoint of doctrine,
NUHWRAIN should already be a matter of interest. This is because of the curious
fact that the union members did not stop working until they were prevented by
Dusit Hotel from entering the workplace when they showed up for work. What they
did was to cut short or lose their hair. This is a very important fact considering the
Labor Codes definition of a strike under Art. 212(o) as any temporary stoppage of
work by concerted action of employees as a result of an industrial or labor dispute.
The reality is that the concerted action of the employees brought about by
their labor dispute with the hotel is nowhere near how people would normally
understand temporary stoppage of work.
30
To stop working temporarily means to
refuse to perform the job for which one is hired, traditionally understood as not
appearing in the workplace or, whether or not work is done in a space controlled by
the employer, by not creating the product or performing the service one is engaged
to do. Stoppage produces material consequences measurable in terms of the amount
of products churned out by the factory or the loss of revenue arising out of non-
performance of a service. In either case, the damage to the employer is evident
given that the employees, though engaged in an economic tiff with the employer, are
26 Id, at 613.
27 Id, at 614. ARTICLE XXIINO STRIKE/WORK STOPPAGE AND LOCKOUT. SECTION 1. No Strikes.
The Union agrees that there shall be no strikes, walkouts, stoppage or slow-down of work, boycott, refusal to
handle accounts, picketing, sit-down strikes, sympathy strikes or any other form of interference and/or
interferences with any of the normal operations of the HOTEL during the life of this Agreement.
28 Ibid.
29 Id, at 615.
30 See Lapanday Workers Union v. NLRC 248 SCRA 95 (1995); Ilaw at Buklod ng Manggagawa (IBM) v. NLRC 198
SCRA 586 (1991); Airline Pilots Association of the Philippines v. Court of Industrial Relations 167 Phil. 14 (1977);
Jacinto v. Court of Appeals, 281 SCRA 57 (1997); Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU, et al. v.
Sulpicio Lines, Inc., 426 SCRA 319 (2004).
still under its employ and thus expected to produce or serve. But in NUWHRAIN,
the employees did report for work and perform the task they were supposed to do,
and there is nothing in the decision of the Court referring to any disturbance in the
business of Dusit Hotel as a consequence of the employees appearing for work
wearing hairstyles different from what they had before. Nor was there any insinuation
that they performed at sub-par levels such that the revenue of the hotel was affected,
even if slightly. We are therefore left with the question whether, in the absence of
any material and calculable damage to the hotel, as shown in the evidence, the act of
the unionists in expressing themselves through their hairstyle while performing the
functions for which they were hired can justifiably constitute a strike within the
meaning of the statute. This question takes on considerable value because, as shall
be discussed in the next section, the act of the employees could be analogized with
the concept of symbolic speech protected by the Free Speech Clause of the
Constitution especially in the light of the historical privileging of the rights of labor
in Philippine law.
For starters, the Courts reference to the various categories of an illegal strike
does not really help and even undermines its conclusions.
31
Nowhere in the
authoritative enumeration cited by the Court could one find anything close to what
it wanted to justify. Tellers enumeration was meant to generalize and was not directed
at specific forms of striking; nor was it meant to guide judges in categorizing whether
those concerted actions by employees that do not fall within the standard definition
are legal or not. And so the only way the Court could justify its decision was by
interpreting the action of the unionists and holding that it amounted to something
beyond the common meaning attributable to the term, that is, by stretching the
language and legislating a new standard of action. The most crucial paragraph of
the Courts decision is found below
In view of the Unions collaborative effort to violate the Hotels Grooming
Standards, it succeeded in forcing the Hotel to choose between allowing its
inappropriately hair styled employees to continue working, to the detriment of its
reputation, or to refuse them work, even if it had to cease operations in affected
departments or service units, which in either way would disrupt the operations of
the Hotel. This Court is of the opinion, therefore, that the act of the Union was not
31 The NUWHRAIN Court, citing Toyota Motor Phils. Corp. Workers Association v. National Labor Relations Commission,
further citing Ludwig Teller, enumerates the so-called categories
(1) [when it] is contrary to a specific prohibition of law, such as strike by employees performing governmental
functions; or
(2) [when it] violates a specific requirement of law, [such as Article 263 of the Labor Code on the requisites
of a valid strike]; or
(3) [when it] is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor
practice against non-union employees; or
(4) [when it] employees unlawful means in the pursuit of its objective, such as widespread terrorism of non-
strikers [for example, prohibited acts under Art. 264(e) of the Labor Code]; or
(5) [when it] is declared in violation of an existing injunction [such as injunction, prohibition, or order issued
by the DOLE Secretary and the NLRC under Art.263 of the Labor Code; or
(6) [when it] is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause.
7 0 IBP JOURNAL
Florin T. Hilbay
merely an expression of their grievance or displeasure but, indeed, a calibrated and
calculated act designed to inflict serious damage to the Hotels finances or its
reputation. Thus, we hold that the Unions concerted violation of the Hotels
Grooming Standards which resulted in the temporary cessation and disruption of
the Hotels operations is an unprotected act and should be considered an illegal
strike.
32
The operative word in the language of the Court is found in the last sentence:
considered; and the rhetorical strategy for arriving at this conclusion is that of necessity.
Looking at the facts of this case, one should immediately notice that the responsibility
for the actual strikethe picketing itselfrests on the answer to the question: who is
to blame for the escalation of this economic war? The hotel or the union? It goes
without saying that if the union members actually did stop working, the Court would
have simply applied the Teller formulation in a rather straightforward manner and
this incident would have ended up as just another labor matter. But precisely because
the unionists did not stop working until they were prevented from entering the
premises of the hotel (because of their violation of the grooming standards), the
Court had to preliminarily determine who was at fault for the eventual strike.
The union says the refusal to allow them to work triggered the picketing, while
the hotel asserts that the employees (some of them, at least) hairstyle was
unacceptable.
According to the Court, the effect of the union members sporting short
hairstyle was to force the hand of the hotel, compelling it to bar the entry into the
premises of employees who suited up for work. This strategy essentially foreclosed
any possibility of resolving the issue of violation of the grooming standards separately
from the problem of the picketing that ensued. Moreover, it allowed the Court to
transfer to the employees the responsibility of the hotel for having prevented the
workers from entering the premises. Lack of choice on the part of the hotel
meant that the employees themselves sealed their faith by cutting short their
hair.
It is noteworthy, however, that strike is a form of action evoking dissent, and
as such is similar to the action of the employees cutting short their hair, given the
context of this case. But, at the same time, strike is a formally defined term under
the Labor Code, with specific consequences very different from the consequences of
protesting in any other manner. For example, a disgruntled group of employees who
ends up distributing defamatory materials against their supervisor would be liable
within the company for violation of some ethical standards and outside of it for civil
damages or even violation of criminal laws. But a group of employees who engage in
32 Supra note 19, at 613-614.
an illegal strike suffer from liabilities defined by the Labor Code itself.
33
Under the
law, employees are allowed to impair the operations of the employer in order to
equalize the relationship between them. This is why the union is held to a higher
standard of accountability for the illegal use of such a powerful weapon. This assumes,
however, that the employees held liable did engage in a strike as defined by the
statute whose defining characteristic is a temporary stoppage of work. Any other
action of the employees that burdens or damages the employer is subject to rules
other than the law on strikes.
The doctrinal shift is therefore the creation of an equivalence between, on the
one hand, concerted action which is not stoppage of work and, on the other, striking
as traditionally understood under the Labor Code and so interpreted by the Supreme
Court. In essence, what the Court has done is to expand the definition of a strike to
cover any concerted action that purportedly damages the employer in the course of
an economic dispute. Whereas before, the understanding was that strikes as defined
by law were construed in the physical sense of people refusing to work and thus
impliedly damaging the business of the employer. Today that definition has been
modified to the extent that refusal to work may, as in NUWHRAIN, no longer be an
element so long as damage to the employer as a consequence of the concerted action
may be inferred. This is a momentous shift in the original balance of power between
labor and capital insofar as the decision places the potential for greater punishment
for collective activity not involving temporary work stoppage. In the specific case of
NUWHRAIN, the cost of this judicial expansion is the decimation of the core of
officers of the union, as it sanctioned the dismissal of twenty-nine (29) union leaders.
It can be supposed that an equivalence can arguably be made in those instances
where the employees do not stop working but nonetheless inflict damage on the
employer, as if they did not work at all. Or where the employees use the opportunity
to work precisely to mimic the effects of a strike. Definitely, workers who are ill-
motivated can be as dangerous when they are inside the premises as when they are
outside. But one would think that, given the potential dangers of legislating into the
law an equivalence of this nature, the Court would have been more cautious and
33 Id, at 616-617: What then are the consequent liabilities of the Union officers and members for their participation
in the illegal strike? Regarding the Union officers and members liabilities for their participation in the illegal
picket and strike, Art. 264 (a), paragraph 3 of the Labor Code provides that [a]ny union officer who knowingly
participates in an illegal strike and any worker or union officer who knowingly participates in the commission
of illegal acts during a strike may be declared to have lost his employment status. . . . The law makes a distinction
between union officers and mere union members. Union officers may be validly terminated from employment
for their participation in an illegal strike, while union members have to participate in and commit illegal acts for
them to lose their employment status. Thus, it is necessary for the company to adduce proof of the participation
of the striking employees in the commission of illegal acts during the strikes. (internal citation omitted). See
also: Labor Code of the Philippines, Book V, Title 1, Chapter IV, Art. 272: Penalties. (a) Any person violating
any of the provisions of Article 264 of this Code shall be punished by a fine of not less than one thousand pesos
(Php1,000.00) nor more than ten thousand pesos (Php10,000.00) and/or imprisonment for not less than three
months nor more than three (3) years, or both such fine and imprisonment, at the discretion of the court.
Prosecution for the same act under the Revised Penal Code, and vice versa. (b) Upon the recommendation of
the Minister of Labor and Employment and the Minister of National Defense, foreigners who violate the
provisions of this Title shall be subject to the immediate and summary deportation by the Commission on
immigration and Deportation and shall be permanently barred from re-entering the country without the special
permission of the President of the Philippines.
7 2 IBP JOURNAL
Florin T. Hilbay
erected standards to ensure the reasonableness of the judicial legislation. But we
can search the decision in vain for any concrete basis for the damage to Dusit Hotel
resulting from the presence of employees sporting short hair. According to the
Court, [t]he appearances of the Hotel employees directly reflect the character and
well-being of the Hotel, being a five-star hotel that provides service to top-notch
clients. Being bald or having cropped hair per se does not evoke negative or unpleasant
feelings. The reality that a substantial number of employees assigned to the food
and beverage outlets of the hotel with full heads of hair suddenly decided to come to
work bald-headed or with cropped hair, however, suggests that something is amiss
and insinuates a sense that something out of the ordinary is afoot. Obviously, the
Hotel does not need to advertise its labor problems with its clients.
34
This is partially
true, and what is missing is, unfortunately, what also happens to be the most
important.
The hotel certainly has some right over the way its employees appear especially
given the enterprise in which it is engaged. But this is only the beginning of the
analysis, not the end. The hotel needs to establish several things: first, evidence that
customers noticed something was in fact amiss. That the Court itself said that
wearing short hair does not per se evoke unpleasant feelings means that the hotel
must supplement its claim with evidence of negative reactions on the part of customers.
This is even more relevant considering that hotels, by the nature of their business,
cater to transients. Permanent residents of a locality might be more sensitive to
radical changes in the way their neighbors look, but those who stay in hotels generally
have no expectation of consistency in the looks of the employees that assist them.
Second, the hotel should establish that the reaction of the customer was in fact negative.
There are many ways of reacting to the novelty of seeing a good number of short-
haired hotel employeesit might be that customers would think that this was pursuant
to a new hotel policy; it might be curiosity, which may or may not lead to inquiry; in
case they inquire, it might be sympathy or lack of sympathy; or they might show a
stunning lack of interest. In the absence of a negative reaction, we cannot even
begin to speak about whether the hotel suffered as a consequence of the concerted
action. Third, the hotel must be able to establish damage, whether reputational or
otherwise. Because the equivalence rests on the assumption that employees who
show up for work to sabotage the employer are no different from those who stop
working, it is indispensable that the employer is actually able to establish the damage
and its extent. In the absence of material damage, the equivalence fails and the
Court cannot consider the employees to have engaged in a strike. But because the
Court actually does so in NUWHRAIN, we now have this dangerous equivalence as a
standing precedent.
So far, what I have done is focus on the doctrinal implications of this new
understanding, limiting the analysis to its effect on existing jurisprudence and with
no reference to an external or policy critique. This is intentional, as my purpose is
to show that the decision is faulty not only (ultimately) from an external perspective
34 Id, at 613.
but also from an internal one. The use of doctrinal tools to study the case is meant
to establish that, by the very terms of the current jurisprudence, the Court has
veered away from settled understanding and quite dangerously so given its loose
treatment of the equivalence between striking and working with the intention of
publicizing ones disagreements with an employer. In the next section, I try to push
further this analysis by introducing a constitutional angle, in the form of an analogy,
to this case. In sum, the idea is to look at the concerted action of the employees as
a form of expression that is subject to some protection by the legislature, if not the
constitution. This completes the picture I presented in the introduction which dealt
with the public nature of labor law, and sets up the conclusion that workers have an
analogous right to engage in certain types of protected speech, with the correlative
insight that any form of regulation to sanction such expression should be subjected
to some higher standard of scrutiny.
Labored Speech
I introduced this article with a discussion of the old critique about the wobbly
dichotomy between the categories public and private in general, and in particular in
the case of labor legislation. The purpose of this introduction was to establish the
possibility of borrowing public law-type of analysis in private law, in the hope of
expanding the parochialism of purely doctrinal critique and establishing the link
between policy and doctrine. At the same time, the technique of analysis that follows
is itself doctrinal, only this time focusing on constitutional law as applied to labor
relations. This itself should allow for a wider lens with which to view the facts of
NUWHRAIN, as constitutional law is more openly embracive of resorts to policy
than labor law. Thus, in a limited sense, the section that follows is an external
critique.
Speaking but not speaking. Free speech is traditionally understood as the right to
speak freely with the use of the word, whether through speech or in writing.
35
In
addition, as part of the Bill of Rights, it is considered an important item in that
basket of legal shields and swords the citizen can use against the State. It is thus
generally held that the Bill of Rights mediates the relationship between State and
citizen, but not between citizen and citizen.
36
The understanding that speech is about speaking and writing turns out to be
very difficult to operationalize in cases that clearly involve expression, though not
with the use of traditional implements such as the voice box or paper. For while it is
true that the stereotypical manifestation of free speech is and has been about
publishing ones thoughts in speech or writing, it does not exhaust the possibilities
for the creative use of the right. It is in these cases where the tug-of-war between the
State and the citizen becomes more interesting. The reason for this is that whenever
35 Thomas Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION (1970).
36 See People v. Marti, 193 SCRA 57 (1991).
7 4 IBP JOURNAL
Florin T. Hilbay
the citizen engages in a traditional form of expression the State is held to a very high
standard of justification for its attempts to regulate the content of that expression.
Be it the incitement
37
or the clear and present danger
38
test, the State will find its
case very difficult to win, given that content-based regulations raise a lot of judicial
suspicion.
39
Most importantly, because traditional forms of expression usually do
not use any medium within the control of government, regulators are left with nothing
to regulate other than the content of the expression itself and thus without any
plausible justification to intrude.
However, the case is different when the speaker decides to use a regulated
medium such as the airwaves
40
and certain public places
41
or when the expression is
tied to an act that may itself be subject to regulation.
42
A species of the latter set of
cases involve so-called symbolic speech or expression that is in the form of an act
that does not make use of the voice box or writing device. In the United States,
jurisprudence has developed with respect to these forms of expression, the effect of
which has been the creation of a test for content-neutral forms of regulating speech
with action components. Because these situations sometimes involve matters in
which the government has some right to regulate, the test focuses not on the content
of the act (which is still considered an expression) but on the legitimacy of the
governments regulation of the non-speech component of the act.
The classic cases involving symbolic speech are those relating to the expression
of anti-war advocates: United States v. Obrien
43
and Texas v. Johnson.
44
The Obrien
case, after which the so-called Obrien test was named, involved resistance against
the draft in the form of the destruction of the draft card. In some ways similar to
Aguinaldos act of tearing of the cedula, the destruction of the draft card was meant
to dramatize the quasi-slave status of a draftee. It so happened that in the case of
Mr. Obrien, the congress amended the draft statute in order to penalize precisely
such an act of destruction. Convicted for tearing his draft card, Obrien argued that
his act was speech protected by the First Amendment which, in turn, covers
communication of ideas by conduct.
45
The U.S. Supreme Court, while recognizing
37 Brandenburg v. Ohio, 395 U.S. 444 (1969), at 447: The constitutional guarantees of free speech and free press do
not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such
action.
38 Schneck v. United States, 249 U.S. 47 (1919); Dennis v. United States, 341 U.S. 494 (1951).
39 See Boos v. Barry, 485 U.S. 312, 334 (1988); Burson v. Freeman, 504 U.S. 191 (1992); Miami Herald Publishing Co.
v. Tornillo, 418 U.S. 241 (1974).
40 See Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Red Lion Broadcasting Co. v.
Federal Communications Commission, 395 U.S. 367 (1969).
41 See Bayan v. Ermita, supra note 2; Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984); Clark v.
Community for Creative Non-Violence, 468 U.S. 288 (1984).
42 See Virginia v. Black et al., 538 U.S. 343 (2003); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. Larue,
409 U.S. 109 (1972); Schneider v. State, 308 U.S. 147 (1939).
43 391 U.S. 367 (1968).
44 491 U.S. 398 (1989).
45 Obrien, supra at 376.
the speech component of the act, also held that the government had legitimate
justification for criminalizing the intentional destruction of the card. As a form of
compromise, it formulated what has become the canonical standard for scrutinizing
content-neutral regulation. In essence, it is a level of scrutiny lower than strict scrutiny
but higher than mere rational basis standard. The Obrien test holds that a
government regulation is sufficiently justified
(a) if it is within the constitutional power of the Government;
(b) if it furthers an important or substantial governmental
interest;
(c) if the governmental interest is unrelated to the
suppression of free expression; and
(d) if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance
of that interest.
46
The test is meant to strike a balance between the intertwined interests of the
government over a particular object or medium, and the free speech rights of a
speaker. In operation, the Obrien test is a way to determine (1) whether or not the
regulation is directed at speech, and (2) if not so directed at speech, whether the
regulation is justifiable even if it incidentally burdens speech. The consequence is
that, if the regulation mainly targets the expressive content itself, the Obrien test is
inapplicable even if the government may have some justifiable reason for passing
the statute involved. This is exactly the case in Texas v. Johnson which involved the
constitutionality of the petitioner states proscription against the desecration of a
venerated object.
47
In this case, Gregory Lee Johnson was prosecuted for desecrating
the American flag, which he burned on the occasion of the Republican National
Convention in 1984. He challenged the constitutionality of the statute on the ground
that he was engaged in symbolic speech. The U.S. Supreme Court upheld his claim
and held that the statute was content-based,
48
which meant that the preservation of
the flag as a symbol of nationhood and national unity, while commendable, could
not be enforced through the criminal justice system without infringing free speech
rights. It therefore subjected the States asserted interest in preserving the special
symbolic character of the flag to the most exacting scrutiny.
49
Symbolic speech in labor relations. While private corporations such as Dusit Hotel
are generally entitled to greater protection from government intrusion than are
46 Id, at 377.
47 Johnson, supra at 400.
48 According to the Court, Johnson was prosecuted because he knew that his politically charged expression
would cause serious offense. If he had burned the flag as a means of disposing of it because it was dirty or torn,
he would not have been convicted of flag desecration under this Texas law; federal law designates burning as the
preferred means of disposing of a flag when it is in such condition that it is no longer a fitting emblem for
display, and Texas had no quarrel with this means of disposal. The Texas law is thus not aimed at protecting
the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments
that would cause serious offense to others. Id, at 411.
49 Id, at 412.
7 6 IBP JOURNAL
Florin T. Hilbay
public corporations, there are several reasons that justify applying, by analogy, the
concept of symbolic speech and the test that comes with it, in the field of labor
relations
First, the special consideration given by the Constitution to labor. The
relationship between labor and capital has never been accepted in this jurisdiction
as purely a matter of contract. Special regard has always been given, both at the
level of the Constitution and of the law, to the position of labor given the radical
inequality of its position in comparison with capital. Unlike many areas of private
life that have been left untouched by the Constitution, labor law has traditionally
been the specific target of constitutional norm-building. Doubtless this has to do
with the problem of insurgency in the Philippines which has been viewed generally
as rooted in the oppressed status of labor.
Second, the regulatory history of the Philippines. As a jurisdiction with a long
history of colonialism, it is understandable that the standard relationship between
the public and the private will be one characterized by a longstanding tendency towards
regulation. Unlike in the United States where government intrusion into private
matters has traditionally been suspect both on pragmatic and ideological grounds,
regulation in the Philippines through the use of police powers has generally been
held sufficient to tilt the balance in favor of expansion of public powers.
This is emphatically the case in respect of strikes, a highly regulated area of
labor law. The ability to strike is a creation of law. By refusing to work, the workers
are actually expressing their dissatisfaction over the economic conditions of their
work. The traditional liberal response for this is that those unsatisfied with the
conditions of their employment should pack up, leave, and find themselves another
job. Through the recognition of the workers right to strike, the law recognizes the
right of the workers to retain their employment while pressuring the employer to
give in to their demands, and in the meantime allowing strikers to impair the
employers operation and inflict damage. We may perhaps even go so far as to say
that the right to strike is an implicit recognition of the employees investment in the
employers enterprise, and that striking is merely a tool by which these investors are
able to eke out their fair share of the profits of the business.
Third, the close relationship between striking and speaking. The legal recognition
of the right to strike is more than just a grant of the power to stop working and
impair the employers business. It is also about the power to publicize certain aspects
of the relationship between the employees and the outfit that they serve. When
employees strike, they do not simply stop working. They usually engage in a public
relations war with the employer through picketing, leafleting, and other means of
communicating their economic concerns. In a way, this is equivalent to the right of
the citizen to petition the government for redress of grievance.
50
50 CONST. art. III, 4; See De la Cruz v. Court of Appeals, 265 SCRA 299 (1996); Bangalisan v. Court of Appeals, 276
SCRA 619 (1997) ; Luzviminda De La Cruz v. Court of Appeals, 305 SCRA 303 (1999); Alipat v. Court of Appeals,
308 SCRA 781 (1999); Everdina Acosta v. Court of Appeals, 334 SCRA 486 (2000).
A strike is not narrowly confined to the affairs between the employer and the
employees. Picketing and leafleting are in fact public demonstrations of the economic
environment in a particular business. Striking employees do not only appeal to the
owners of the firm; they are, in a real sense, also presenting their case to the public.
In some ways, this relationship mimics that of the state and its citizens. When
employees strike, they are in effect demanding a reconfiguration of their economic
relations with the employer. In other words, they are engaging the employer in a
battle for the terms of sharing of the wealth of the firm. Viewed in this light, it
becomes easier to acknowledge the parallelism between the situation of striking
employees and citizens engaging in expressive activities and petitioning the
government for redress of grievances.
If citizens are allowed to express themselves in symbols and are protected by
the Constitution through the Obrien test, and the justifications offered above
establish a plausible equivalence between speaking and striking, then the Court
should be able to apply the same test insofar as the evaluation of the employers
ability to sanction employees for their symbolic speech is concerned. I argue that
this analogous application provides the Court with a better template for regulating
the relationship between the employer and employees in this area of concern,
especially given the strong normative concern of the Constitution towards labor.
Cropped- hair As Symbolic Speech. Applying the Obrien test to weigh the
justification for sanctioning the union employees involves fitting the elements of the
standard to the actions of the employer in relation to what the employees did. This
is a rather straightforward process, the goal of which is to articulate and highlight
the reasonableness of the action of the employer in penalizing the employees for
their concerted action which did not involve stoppage of work. For purposes of
applying the test, we can restate the Obrien test in the following terms
Corporate regulation of employees conduct is reasonable:
(a) if it is within the corporate powers of the business;
(b) if it furthers an important or substantial business
interest;
(c) if the regulation is unrelated to the suppression of free
expression; and
(d) if the incidental restriction on alleged freedoms of the
employees is no greater than is essential to the
furtherance of that interest.
Does Dusit Hotel have the power to sanction union members for sporting
cropped hair? Following the amended Obrien test
(a) Does Dusit Hotel have the power to enact regulations controlling the way
their employees look? Yes. It is generally conceded that the employer, especially
one in the service sector, has the regulatory capacity to control the way its employees
7 8 IBP JOURNAL
Florin T. Hilbay
look through devices such as a dress code, uniform, etc. and this includes having
some control over the way parts of the body are presented, as in this case, through
the Hotels grooming standards.
(b) Does Dusit Hotels grooming standards further its corporate interest? Yes.
Dusit Hotels reputation rests heavily on two things(1) the quality of the hotels
building and facilities and (2) the kind of service offered by the management through
its staff. The ability of hotels to provide service is immediately judged on the basis
of the way the staff relates to its customers, and part of this performance is not only
limited to carrying bags, saying customary niceties, giving directions, providing food
and other hotel comforts. This performance also includes the visual presentation of
the staff to the clients to create a distinctive and pleasing impact. The use of grooming
standards to control this visual presentation is legitimately part of the hotels attempt
to further its corporate interests.
(c) Are the grooming standards, as applied to the collective action of the
unionists, unrelated to their expression? No. In this case free expression relates
to the right of the employees to legitimately air their grievances in a manner that
does not amount to stoppage of work and does not result in damage to the employer.
The fact that they are employees does not, by itself, impair their right to speak.
Consider, for example, the action of an employee, or the union itself, in setting up a
blog to report on the failed negotiation with Dusit Hotel. So long as no defamatory
materials are involved and she is not so contractually bound, a strong argument is
available for the position that the employee or the union is within her or its right in
reporting and expressing sentiments about the failed negotiation.
If it is accepted that the union, as an entity recognized by the labor code, or
the employee, has the right to engage in expressive activities that do not impair
their functions, then it becomes apparent that the sole basis of the sanction imposed
by the hotel is to suppress the expressive activity of the employee or the union. Of
course, this does not automatically mean that the employer is at fault or that the
expressive activity is immune from regulation. The finding that the grooming
standards, as imposed in the specific case of the hotel employees wearing cropped
hair, are directed at the content of the expressive activity only means that the employer
is held to a higher standard of justification for imposing the sanction. Its implication
in this case is that the content-based regulation, as applied, must be justified on the
ground that there is evidence of damage on the part of the hotel as a consequence of
the expression being communicated, if at all it was so conveyed.
Pursuant to this analysis, Dusit Hotel must establish the following evidence:
(a) that the employees engaged in collective action; (b) that the intention was to
impair the reputation of the hotel; (c) that such intention was communicated to the
guests of the hotel; (d) that, as a consequence of the communication, the guests
adversely reacted; and (e) the hotel suffered materially from this adverse reaction in
terms of impaired goodwill and reputation or reduced sales.
Compare this heightened standard with the decision of the Court and one
immediately sees how casually the Court treated the rights of the employees to air
their grievances in nonviolent form. Notice that in the decision, the Court three
crucial, ungrounded assumptions: (a) that the intention of the members of the union
was to impair the business of the hotel by sporting short haircut; (b) that such intention
was so communicated to the clients of the hotel; and (c) that damage to the hotels
reputation or finances ensued as a consequence of the collective action.
(d) Is the incidental restriction on alleged freedoms of the employees no greater
than is essential to the furtherance of that interest? No. In fact, the restriction
amounts to a severe penalty in the form of expulsion or suspension from ones
employment which in effect is an injunction against expression. One can encapsulate
the cost of freedom in this case by saying that because some of the unionists decided
to cut short their hair, they eventually cut short their employment. This is an
astoundingly stiff sanction and an unfair equivalence especially considering that those
who bore the brunt of the sanction were the union leaders. This penalty produces
the greatest possible chilling effect on the right of unionists, especially their leaders,
to bring to bear the power of nonviolent expression into the negotiating table.
Applying the re-modeled Obrien test to the situation at bar, we can see how
potent the test is in terms of its ability to articulate the details of similar cases in
relation to the larger policy questions involved. The great advantage of the test, as
one can readily see, is that it forces the Court to weigh the competing claims of the
parties not at a speculative level but at a factual level. Using this demand for a
detailed articulation, one could make the two-pronged argument that because the
sanction imposed by Dusit Hotel was directed solely at the expressive content of the
employees cropped hair and that the interest sought to be protected by the hotel
prevention of damage to its reputation and goodwillwas not fully shown to have
been placed in any concrete danger of impairment, the termination of the services of
the employees was unwarranted.
Conclusion
The policy question that NUWHRAIN presents is this: how should the courts
draw the line between protected and unprotected speech in the workplace in the
context of a contentious collective bargaining negotiation? This is a very important
question of policy given the competing recognition of the importance of capital and
labor in the Constitution and the historical tension between them in Philippine society.
One the one hand, employers have the right to protect their rights to property
which includes the power to control, to a certain extent, both the expression and the
appearance of those under their employ; on the other, the contract of employment
does not transform employees into unthinking subjects with no capacity to express
themselves especially in matters that relate to their welfare. Demarcating this line
serves to notify both employers and employees of the rules of the game of economic
8 0 IBP JOURNAL
Florin T. Hilbay
resource management in the context of the desire of employees to attain dignity
while serving the interest of capital.
In this article, I have sought to critique the fundamental assumptions by the
NUWHRAIN Court primarily by highlighting the analogously constitutional
dimensions of the facts of the case. My conclusion is that the Court played it loose
by simultaneously equating the actions of the employees with temporary stoppage
of workstrikeand turning a blind eye to the non-violent, expressive content of
such actions. Constructively, I propose that the court use the Obrien Test in similar
cases in order to provide a more detailed justification for sanctioning or penalizing
expression by organized labor. The function of the test is precisely to compel judges
to articulate more clearly their assumptions that will ultimately serve both employers
and employees with more concrete guidelines for determining the legality of their
actions.

The Legal Regime Governing the Export of Filipino Workers
The Legal Regime Governing
the Export of Filipino Workers*
Patricia R.P. Salvador Daway**
I. Introduction
United Nations Secretary-General Ban Ki-Moon encapsulates not only the saga
but also the significant contributions of Migrant Workers in the following manner:
For decades, the toil of solitary migrants has helped lift entire families and
communities out of poverty. Their earnings have built houses, provided health care,
equipped schools and planted the seeds of business. They have woven together the
world by transmitting ideas and knowledge from country to country. They have
provided the dynamic human link between cultures, societies and economies. Yet, only
recently have we begun to understand not only how much international migration
impacts development, but how smart public policies can magnify this effect.
Indeed, migration is a phenomenon, the importance and extent of which,
affecting as it does huge numbers of people the world over cannot be overemphasized.
In any country where opportunities for employment available to its ever-growing
population are rather scarce, the natural reaction is for the unemployed and even
the underemployed to look for the proverbial greener pastures abroad. It has been
observed that the natural progress of things toward improvement is a natural
consequence of the uniform, constant and uninterrupted effort of every man to
better his condition.
1
More succinctly (I)n every human being, there is a wish to
ameliorate his own condition.
2
Translated into more concrete terms, there is the
constant effort of most families to give their children a better start than they
enjoyed themselves.
3
The Philippines has over eight (8) million overseas Filipinos in over 175
countries and territories worldwide, comprising about ten percent (10%) of the
* A paper presented at the Regional Seminar on the Protection of Foreign Workers in Asia Taiwan Labor Law
Association November 21-22, 2009 Taipei, Taiwan.
** Associate Dean, University of the Philippines College of Law and Supervisor, University of the Philippines Law
Center.
1 Adam Smith, Wealth of Nations, Book II Chapter III.
2 Henry Hazlitt, The Conquest of Poverty, New York Foundation for Economic Education 1996 (1973) p. 159,
quoting History of England, Thomas Babington Macualay.
3 Ibid, p. 160.
8 2 IBP JOURNAL
Patricia R.P. Salvador Daway
Philippine population and 20 percent (20%) of the labor force.
4
The latest census
(July 2009) on Philippine population indicates a total of 97,976,603 Filipinos and to
date, and the deployment average is 3,377 workers a day.
The biggest issue which has bedeviled Overseas Filipino Workers (OFWs, for
brevity) is their vulnerability to oppression and exploitation and all kinds of abuses.
This raises the question of sufficiency of the laws and programs that the Philippines
has in addressing the same. Moreover, the effects of migration are not limited to the
OFWs themselves but extend to the social costs on the families that they leave
behind, and to the country as a whole considering its reliance on remittances from
OFWs.
This paper will give a general background of the labor sector in the Philippines,
before proceeding to the legal framework governing the deployment of OFWs and
then, the effects of the OFW phenomenon.
II. General Background
A. The Labor Scene In The Philippines
The official Labor Force Survey reveals that the number of unemployed persons
as of July 2009 was estimated at 2.9 million. This translates to an unemployment
rate of 7.6%. The survey indicates that [o]f the estimated 59.5 million population 15
years old and over in July 2009, about 38.4 million persons were reported to be in
the labor force. This translates to a labor force participation rate (LFPR) of 64.6
percent [] Of the estimated 35.5 million employed persons in July 2009, more than
half (51.5%) worked in the services sector with those employed in wholesale and
retail trade, repair of motor vehicles, motorcycles and personal and household goods
sub-sector comprising the largest sub-sector (18.9% of the total employed). Workers
in the agriculture sector accounted for 33.6 percent of the total employed, with
workers in agriculture, hunting and forestry making up the largest sub-sector (29.5%
of the total employed). Only 14.8 percent of the total employed were in the industry
sector. Among the various occupation groups, laborers and unskilled workers
comprised the largest proportion (33.0%) of the total employed population. Farmers,
forestry workers and fishermen were the second largest group, accounting for 16.2
percent of the total employed population.
5
The same survey reports that employed persons can be categorized into: wage
and salary workers, own account workers and unpaid family workers. Wage and salary workers,
which comprised 55% of the employed persons work for private households, private
4 L. Cadapan, Fast Facts on Filipino Labor Migration, Kanlungan Center Foundation, Inc. (Quezon City: 1999)
7-9
5 Census Press Release, taken from http://www.census.gov.ph/data/pressrelease/2009/1f0903tx.html, accessed
on November 12, 2009
establishments, government or government corporations and in own-family operated
farm or business. Own-account workers comprised 33.9% while unpaid family workers
comprised 10.8%. Those working for private establishments comprised the largest
proportion, 40.8% while government workers including those working for government
corporations comprised only 8.3 percent of the total employed. While workers in
private households comprised 6.0%, the own account workers or self-employed
comprised the majority (29.5% of total employed).
6
The survey classifies employed persons as either full-time workers or part-
time workers. While full-time workers work for 40 hours or more, part-time workers
work for less than 40 hours. As of July 2009, approximately 23.0 million employed
persons (64.9%) were working full time, while 34.1% of the total employed worked
part-time.
7
With respect to underemployed persons or those who express the desire
to have additional hours of work in their present job or to have additional job or to
have a new job with longer working hours, the survey estimates them at 7.0 million
as of July 2009, placing the underemployment rate at 19.8%. The survey notes that
most of the underemployed were working in the agriculture sector (44.1%) and services
sector (40.3%) with those in the industry sector accounting for 15.6%.
8
As regards educational groups, the high school graduates comprised more
than one-third (33.0%) of the unemployed, the college undergraduates comprised
about one-fifth (21.5%), while the college graduates was estimated at 19.7%.
9
However, data from the private sector paints a slightly different picture.
According to the Social Weather Station, a highly reputable private non-stock,
nonprofit social research institution, [u]nemployment reached a record high of 34.2
percent in February[] This means an estimated 14 million were unemployed, a
considerable rise from the previous quarters 27.9 percent or estimated 11 million
adults, according to the SWSs First Quarter 2009 survey.
10
B. The Rationale Behind Migration
1. On the part of the migrant workers
In the article aptly entitled Why Filipinos Prefer to Work Abroad
11
the writer
opines that [t]he unstable economic and political situation in the Philippines is one
of the major causes why most educated and highly skilled Filipinos prefer to work
6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid.
10 SWS survey: Unemployment rate now at 34.2%, Philippine Daily Inquirer, First Posted 05:31:00 05/13/2009,
taken from http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090513-204696/SWS-survey-
Unemployment-rate-now-at-342, accessed on November 12, 2009.
11 Why Filipinos Prefer to Work Abroad?, http://www.ofw-connect.com/myarticle/why_work_overseas.htm, accessed
on November 12, 2009.
8 4 IBP JOURNAL
abroad. Filipino workers could not see any hope from their leaders to achieve
prosperity for the country. Low salary rates is also a compelling reason. The writer
adds that [t]o get better education from reputable schools in the Philippines is not
cheap for an ordinary Filipino but by the time a worker gets a job in the Philippines,
he does not get paid enough to equal his investment on education. Due to this, most
Filipino skilled workers get jobs abroad where salary [is] commensurate [to] education,
skills, and experience. Sometimes, an OFW can be paid more if he takes a blue-
collar job even if he is a degree holder. That is why a lot of degree-holder Filipinos
work abroad as maids, sales ladies, construction workers and laborers. Most Filipinos
would work on any job as long as it is decent and high paying.
The writer further avers that poor benefits offered in the Philippines is another
reason for OFWs preference to work abroad. Thus, [a] foreign-based company can
give benefits to employees such as housing, food allowance, medical or health care,
dental care, paid leave, or even educational benefits for children but in [the]
Philippines, it is very rare to be employed and get most of these benefits.
2. On the part of the Philippine government
In a paper on OFWs and Overseas Migration Programs,
12
it was brought to
fore that [m]igration is not wholly a personal decision motivated by desire for
capitalist accumulation, but also reflects the lack of development policies on the
part of the government and the lack of satisfactory living and employment
opportunities within the home country. [] [T]he government [has] deliberately
promoted labor migration as a solution to unemployment and growing national
accounts deficits. The view has been advanced that the reliance on OFW remittances
to boost the Philippine economy is the primary reason why the government supports,
and institutionalizes, the deployment of Filipino workers abroad.
C. Actual situations of OFWs in receiving countries
According to Deployment Statistics
13
of the Philippines Overseas Employment
Administration, the top ten destinations for both rehires and new hires in 2008 are
as follows: 1. Saudi Arabia (28.3%); 2. United Arab Emirates (19.9%); 3. Qatar (8.7%);
4. Hong Kong (8.0%) 5. Singapore (4.3%); 6. Kuwait (4.0%); 7. Taiwan (4.0%); 8. Italy
(2.3%); 9. Canada (1.8%); and 10.Bahrain (1.3%). Deployment to other destinations is
at 17.4%.
According to the same source, the top ten skills for new hires in 2008 are as
follows: 1. Household Service Workers (14.8%); 2. Waiters, Bartenders and Related
12 De Guzman, O. Overseas Filipino Workers, Labor Circulation in Southeast Asia, and the (Mis)management of
Overseas Migration Programs, taken from http://kyotoreview.cseas.kyoto-u.ac.jp/issue/issue3/article_281.html,
accessed on November 12, 2009.
13 Overseas Employment Statistics, from http://www.poea.gov.ph/html/statistics.html, accessed on November 12,
2009.
Workers (4.1%); 3. Charworkers, Cleaners (3.4%); 4. Professional Nurses (3.4%);
5. Caregivers and Caretakers (3.0%); 6. General Laborers/Helpers (2.9%); 7. Plumbers
and Pipe Fitters (2.9%); 8. Wiremen-Electrical (2.6%); 9. Welders and Flame-Cutters
(2.0%); and 10. Building Caretakers (2.0%). Newly-hired OFWs engaged in other skills
are placed at 58.9%.
As of 2008, Landbased OFWs comprise 78.83% (New hires at 30.50% and
Rehires at 48.33%), while Seabased OFWs comprise 21.17%. As earlier stated, the
daily deployment average is 3,377 workers. Of the new hires, 174,928 are male and
163,338 are female.
D. The methods of their recruitment
Article 18 of the Labor Code bans direct hiring by providing that: No employer
may hire a Filipino worker for overseas employment except through the Boards and
entities authorized by the Secretary of Labor. This means that the hiring of OFWs
must be coursed through the Philippines Overseas Employment Administration
(POEA) or through (a) private employment agencies or (b) private recruitment entities
which, pursuant to national development objectives, may be allowed under the law
to participate in the recruitment and placement of workers. Such participation will
be subject to guidelines as may issued by the Secretary of Labor. (Labor Code,
Articles 12[f], 13 [c] [d] [e] [f], 14 [a] and 25)
The Labor Code regulates private sector participation through requirements
pertinent to capitalization, registration fees, bonds and other licensing and reportorial
requirements (Labor Code, Arts. 26-33).
III. Legal FRAMEWORK
A. Major Statutes Governing The Protection Of Ofws
The primary statute governing labor standards and labor relations in the
Philippines is the Labor Code which is a consolidation of labor and social laws. The
Code is meant to afford protection to labor, to promote full employment, to ensure
equal work opportunities regardless of sex, race or creed and to regulate the relations
between workers and employers. It is also intended to promote human resources
development and to insure industrial peace based on social justice. Likewise, the
Philippines has a Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042),
which institutes the policies of overseas employment and establishes a higher standard
of protection and promotion of the welfare of not only the migrant workers
themselves but likewise, their families and for that manner, other overseas Filipinos
who are in distress.
Most significant in the Labor Code and in the Migrant Workers Act are the
provisions which penalize illegal recruitment.
8 6 IBP JOURNAL
Under the Labor Code,
14
any recruitment activities undertaken by non-licensees
or non-holders of authority are illegal and punishable. It further provides that illegal
recruitment, when committed by a syndicate or in large scale, shall be considered an
offense involving economic sabotage. The Migrant Workers Act
15
broadens the scope
14 Art. 38. Illegal recruitment.
a. Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code,
to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishable
under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer
may initiate complaints under this Article.
b. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense
involving economic sabotage and shall be penalized in accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more
persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction,
enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in
large scale if committed against three (3) or more persons individually or as a group.
c. The Secretary of Labor and Employment or his duly authorized representatives shall have the power to
cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is
determined that his activities constitute a danger to national security and public order or will lead to
further exploitation of job-seekers. The Secretary shall order the search of the office or premises and
seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities
and the closure of companies, establishments and entities found to be engaged in the recruitment of
workers for overseas employment, without having been licensed or authorized to do so.
15 SECTION 6. Definition. For purposes of this Act, illegal recruitment shall mean any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract
services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-
licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or
nonholder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall
be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether
a non-licensee, non-holder, licensee or holder of authority:
(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of
allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any
amount greater than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for
the purpose of securing a license or authority under the Labor Code;
(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him
another unless the transfer is designed to liberate a worker from oppressive terms and conditions of
employment;
(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied
for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to
the dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly
authorized representative;
(h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign
exchange earnings, separation from jobs, departures and such other matters or information as may be
required by the Secretary of Labor and Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the
Department of Labor and Employment from the time of actual signing thereof by the parties up to and
including the period of the expiration of the same without the approval of the Department of Labor and
Employment;
(j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board
of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of
a travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial
considerations other than those authorized under the Labor Code and its implementing rules and
regulations;
(l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment
; and
(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing
for purposes of deployment, in cases where the deployment does not actually take place without the
workers fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an
offense involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more
persons conspiring or confederating with one another. It is deemed committed in large scale if committed
against three (3) or more persons individually or as a group.
The persons criminally liable for the above offenses are the principals, accomplices and accessories. In
case of juridical persons, the officers having control, management or direction of their business shall be
liable.
of illegal recruitment by punishing specific acts of illegal recruitment regardless of
whether or not the person committing such act is a licensee or a holder of authority.
Also of note in the Migrant Workers Act is its provision on deployment which
states that: The State shall deploy overseas Filipino workers only in countries where
the rights of Filipino migrant workers are protected. The government recognizes
any of the following as a guarantee on the part of the receiving country for the
protection and the rights of overseas Filipino workers: (a) It has existing labor and
social laws protecting the rights of migrant workers; (b) It is a signatory to multilateral
conventions, declarations or resolutions relating to the protection of migrant workers;
(c) It has concluded a bilateral agreement or arrangement with the government
protecting the rights of overseas Filipino workers; and (d) It is taking positive,
concrete measures to protect the rights of migrant workers (Section 4).
B. The Philippine Constitution
Considering the inherent inequality between labor and capital, the framers of
the fundamental law of the Philippines enshrined therein provisions which are aimed
at leveling the playing field between them. Thus, the Constitution mandates the
State to afford full protection to labor, whether based locally or overseas, organized
or unorganized. The Constitution likewise mandates the promotion of full
employment and equality of employment opportunities for all.
Moreover, the Constitution guarantees the so-called seven primary or cardinal
rights of all Filipino workers, to wit: (1) right to self-organization, (2) right to collective
bargaining and negotiations, (3) right to peaceful concerted activities, including the
right to strike in accordance with law, (4) right to security of tenure, (5) right to
humane condition of work, (6) right to a living wage, and (7) right to participate in
policy and decision-making processes affecting their rights and benefits as may be
provided by law.
In the fairly recent en banc decision of the Supreme Court of the Philippines, it
was held:
Our present Constitution has gone further in guaranteeing vital social and economic
rights to marginalized groups of society, including labor. Under the policy of social
justice, the law bends over backward to accommodate the interests of the working
class on the humane justification that those with less privilege in life should have
more in law. And the obligation to afford protection to labor is incumbent not only
on the legislative and executive branches but also on the judiciary to translate this
pledge into a living reality. Social justice calls for the humanization of laws and the
equalization of social and economic forces by the State so that justice in its rational
and objectively secular conception may at least be approximated. (Antonio M. Serrano
v. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., GR No. 167614;
March 24, 2009)
8 8 IBP JOURNAL
C. International Convention
The Philippines has signed and ratified the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families.
As such, the said convention forms part of the law of the land.
16
As the title of the
convention suggests, protection is afforded not only to the migrant workers
themselves but to their families as well. It recognizes the principles and standards
embodied in international instruments concerning human rights in general and
migrant workers in particular. Included in the convention are employment rights,
the right to freely choose employment, trade union rights, social security rights, the
right to health, the right to housing, the right to family unity, the right to education,
cultural rights, political rights, and residence rights.
In theory, such convention is able to give full protection to migrant workers.
However, it is noticeable that most receiving countries have not ratified the convention.
Of the top ten destinations of OFWs enumerated previously, none has signed or
ratified to date.
17
This implies that the receiving countries are not amenable to the
idea of extending full protection and benefits to migrant workers. The problem of
the protection of these workers remains in the absence of ratification of the receiving
countries.
D. Government Agencies in Charge of OFWs
1. Department of Labor and Employment (DOLE)
The DOLE is the primary government agency mandated to promote gainful
employment opportunities, develop human resources, protect workers and promote
their welfare, and maintain industrial peace.
18
2. Overseas Workers Welfare Administration (OWWA)
The OWWA is an attached agency of the DOLE. It is the lead government
agency tasked to protect and promote the welfare and well-being of OFWs and their
dependents. Its two-fold mandate is to deliver welfare services and benefits, and to
ensure capital build-up and fund viability. Among its objectives are to: protect the
interest and promote the welfare of OFWs in recognition of their valuable contribution
to the overall development effort; facilitate the implementation of the provisions of
the Labor Code concerning the responsibility of the government to promote the
16 Section 2 of Article II of the Philippine Constitution states that The Philippines [] adopts the generally
accepted principles of international law as part of the law of the land.
17 http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en, accessed on
November 15, 2009.
18 Agency Profile from http://www.dole.gov.ph/profile/, accessed on November 12, 2009.
well-being of OFWs; provide social and welfare services to OFWs, including insurance,
social work assistance, legal assistance, cultural services, and remittance services;
ensure the efficiency of collection and the viability and sustainability of the fund
through sound and judicious investment and fund management policies; undertake
studies and researches for the enhancement of their social, economic and cultural
well-being; and develop, support and finance specific projects for the welfare of
OFWs.
19
3. Philippine Overseas Employment Administration (POEA)
The POEA is tasked to regulate private sector participation in the recruitment
and overseas placement of workers by setting up a licensing and registration system.
It is also tasked to formulate and implement, in coordination with appropriate entities
concerned, when necessary, a system for promoting and monitoring the overseas
employment of Filipino workers taking into consideration their welfare and the
domestic manpower requirements. In addition to its powers and functions, the POEA
is tasked to inform migrant workers not only of their rights as workers but also of
their rights as human beings, to instruct and guide the workers how to assert their
rights and provide the available mechanism to redress violation of their rights.
20
E. NGOs
The Philippine Constitution institutionalized the so-called non-governmental,
community-based or sectoral organization that promotes the welfare of the nation,
encouraging its formation under Article II, Sec. 23 thereof.
Accordingly, there are at present numerous non-governmental organizations
(NGOs) which focus on providing protection and assistance to migrant workers.
The NGOs protect rights of not only OFWs but also, of Filipino immigrants
and their families as well as promote their welfare consistent with the Constitutional
mandate. These help improve the politico-socio-economic conditions of OFWs
through policy advocacy, information dissemination, networking, capacity building
and direct assistance. Examples of these NGOs are the Center for Migrant Advocacy
Philippines (CMA) and the Katipunan ng Migranting Pilipino, Inc. (Japan). CMA is
engaged in the gathering of information, conduct of studies on overseas migration
and related concerns and information dissemination, among others.
Kapisanan has been providing direct assistance to OFWs and their families
including legal assistance to those faced with complaints which may lead to the
cancellation of their working visas and eventually, their deportation from the country
19 About OWWA from http://www.owwa.gov.ph/index.php?page=about-owwa, accessed on November 12, 2009.
20 Section 23 of the Migrant Workers Act, as amended by RA 9422.
9 0 IBP JOURNAL
of employment. It has also been documenting the cases of Japan-based OFWs who
received assistance from Kapisanan.
F. Memoranda of Understanding with Foreign Countries
In an article
21
posted on the website of the Office of the President, it was said
that former President Gloria Macapagal-Arroyos international engagements have
brought about several hiring agreements with foreign countries. It stated that among
the countries that the President visited and which committed to hire more Filipino
professionals and skilled workers are Qatar, Saudi Arabia, Canada, Australia, and
Japan. The DOLE reported that the Philippine Government entered into a bilateral
agreement with South Korea on the employment of Filipino overseas workers and
that the Memorandum of Understanding signed between the DOLE and its Korean
counterpart in May 2009 provided for the hiring of 5,000 Filipino workers in the
Korean manufacturing industry and other sectors within the next ten months.
The Philippines likewise entered into MOUs with Alberta, Manitoba, British
Columbia and Saskatchewan. The common purpose of these MOUs is to clarify and
articulate the participants intentions to promote and strengthen areas of cooperation
in the fields of labor, employment and human resource deployment and development.
However, these MOUs are not legally binding on the parties. This must be so
considering that Section 21 of Art. VI of the Constitution provides that (N)o treaty
or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.
IV. Critical Assessment
Admittedly, the major advantage of sending workers abroad is financial, that
is, the inflow of remittances. The Department of Economic Research forecasts that
OFW remittances by the end of 2009 would amount to US$ 17.1 billion or a growth
of 4% from the end-2008 level despite the global economic crisis. University of the
Philippines Prof. Randy David in his column
22
published in the most widely circulated
newspaper in the country today, the Philippine Daily Inquirer, attributes this fixation
with remittances to the dire economic situation of the Philippines and the mass
poverty among the people. David avers that [l]ittle attention, if any, is paid to the
proportion of OFW remittances that is set aside for investments in productive
capacity. Nor is the government creating meaningful opportunities for OFWs to
invest a good part of their earnings in entrepreneurial activity. Moreover, it has
21 Demand for Filipino workers abroad expected to hold up, 26 July 2009, from http://www.op.gov.ph/
index.php?option=com_content&task=view&id=25740&Itemid=, accessed on November 12, 2009.
22 David. R., Overseas employment and its effects (in the Philippine Daily Inquirer, 07/18/2009), from http://
opinion.inquirer.net/inquireropinion/columns/view/20090718-215995/Overseas-employment-and-its-effects,
accessed on November 12, 2009.
led to the entrenchment of an economic strategy based on labor export that tends to
preclude planning for the long-term development of the national economy.
Remittances from workers abroad have become a short-term solution to the
problem of finances, not only at the level of the family but more so, at the national
level. This approach is problematic in that the Philippines does not seem to address
the need to stabilize and improve internal employment conditions and opportunities.
Reliance on deployment of workers abroad may pose problems in the future especially
if the receiving countries get hit with financial crises which may lead them to lay off
Filipino workers. True, we now live in a globalized world. But that does not preclude
the necessity of strengthening internal programs especially when it comes to local
employment and internal economic sustainability.
Another serious concern attendant to the migration phenomenon is with regard
to the families that are left behind, most especially the children. It has been reported
23
that about nine million Filipino children under the age of 18 are left behind by one
or both parents to work tentatively or live permanently abroad (based on several
studies done by non-governmental and government organizations). Although the
quality of life, most importantly of the education, of OFWs and their families are
improved by remittances, migration also has its social cost in that in the absence of
the parents, technological mechanisms like cellular phones and computers have
become the default substitute to personal parenting. Such modes of communication
cannot, in any way, replace the relationship that is formed between the parent and
the child when the parent is physically present. The report further reveals that
migration of parents is indeed heart-breaking for children, making them long for
parental care, get confused over gender roles, be vulnerable to abuse, and even
develop consumerist attitudes. In the extreme, migration may lead to the OFWs
abandoning their families in the Philippines altogether.
24
As for the OFWs themselves, problems arise in the area of their protection
and welfare abroad. One of the most prevalent issues is imprisonment. It has been
reported in Inquirer.net
25
that [s]ome 3,000 Filipinos are in jail in different countries
around the world, according to the Department of Foreign Affairs. According to
the report, about 70% are detained on immigration-related charges, while the rest
are detained for common crimes, including theft and drug trafficking. Another concern
are the cases OFWs who are abused or maltreated by their employers, usually women
domestic helpers who run away from their employers.
This is a manifestation of the lack of force and effect of the Philippine laws for
the protection of OFWs. As mentioned in a previous section, the Philippines is a
23 Tan, K.J.T., Leaving OFW children behind: Economic benefits vs social costs, from http://www.gmanews.tv/
story/134430/leaving-ofw-children-behind-economic-benefits-vs-social-costs, accessed on November 12, 2009.
24 See, D.A., Cases of abandonment of OFW families rising, October 11, 2007, from http://mb.com.ph/node/
38315, accessed on November 12, 2009.
25 Esplanada, J.E., 3000 Filipinos in jail overseas, from http://globalnation.inquirer.net/news/breakingnews/view/
20091110-235374/3000-Filipinos-in-jail-overseasDFA, accessed on November 12, 2009.
9 2 IBP JOURNAL
signatory, and has ratified, the ILO Convention on Migrant Workers. However, the
lack of ratification on the part of receiving countries renders such convention
seemingly useless. Further reform must be made for the protection of migrant workers,
not only on the national level, but also in the international sphere. Without such
international cooperation, the Philippines will continuously find itself helpless in
protecting its workers abroad since it will always be limited by its need to appease
the receiving nations, as it is heavily reliant on remittances from these countries.
V. Conclusion
The problems facing OFWs are both in the national and international levels.
They affect the OFWs themselves, the families they leave behind, and the country
itself. On the part of the OFWs, the lack of external cooperation leads to the
continuous abuses and violation of rights of Filipino workers abroad, despite the
best efforts of the Philippine government to protect its workers. On the part of the
families left behind, the social cost of migration and separation are undeniable, as
can be seen in the fragmentation of families of OFWs. On the national level, the
problem of heavy reliance on foreign remittances prevails. At the end of the day, the
economic standing of the Philippines relative to other nations is both the reason and
the end of the OFW phenomenon.
On the international level, the sheer magnitude of the number of migrant
workers making the exodus from their States of origin makes it apparent that States
of employment, most of which are the affluent first world countries, have become
increasingly dependent on labor supplied by the struggling third world countries
like the Philippines.
Despite this, States of employment have been reluctant, even unwilling, to
accept international standards concerning migrant workers protection. They fail to
see that it is basically a symbiotic relationship that exists. It is akin to a partnership
where both parties are obliged to contribute their share for the good of the
partnership, which in turn will redound to the benefit of both parties and not just
one of them.

Global Climate Change
and Recent Developments
Myrna S. Feliciano*
1. Introduction
The Philippines is a climate hotspot, vulnerable to some of the worst
manifestations of climate change. As a developing country, with very little access to
vital resources, it has a low ability to cope with disasters brought about by climate
change impacts. All over the world, the impacts of such warming are diverse and
alarming. Manifestations include wide spread retreat of glaciers and decrease in
snow cover, change in heat content and chemical composition of the oceans, increase
in sea level and aspects of the extreme weather events such as droughts, heavy rains,
floods and the intensity of tropical typhoons as well as tornadoes.
1
Sea level rising
threatens coastal areas, island ecosystems and low-lying communities. Provinces
that are highly vulnerable to a 1-meter sea level rise include Zamboanga del Sur,
Sulu and Palawan.
2
Climate change impacts as an additional pressure that could exacerbate the
high rate of species extinction of plants and animals and current degradation of the
Philippine ecosystem. Through our growing population, our thirst for natural
resources together with climate change could help carry off 20% to 30% of all species
before the end of the century. Thus, shaping an Earth that will be biologically
impoverished.
3
The United Nations organized Intergovernmental Panel on Climate Change
(IPCC), the foremost scientific authority on the issue, stated in its most recent report
that there is new and stronger evidence that most of the global warming observed
over the last 50 years is attributable to humans.
4
Human activities that resulted in
greenhouse gas concentrations are primarily fossil fuel use, deforestation, land use
change and agriculture.
* Director, Mandatory Continuing Legal Education Office, Supreme Court of the Philippines; Professor II,
Philippine Judicial Academy and Professorial Lecturer, University of the Philippines, College of Law.
1 Greenpeace, The Philippines: A Climate Hotspot; Climate Impacts, 1 (April 2007).
2 Ibid., p. 6.
3 Bryan Walsh, The New Age of Extinction, Time Magazine, April 13, 2009, p.32.
4 IPCC Fourth Assessment Report: Climate Change, 2007. Available at http://www.ipecich/ipccreports/index.htm.
9 4 IBP JOURNAL
Myrna S. Feliciano
These greenhouse gases such as carbon dioxide (CO
2
), methane (CH
2
), nitrous
oxide (N
2
O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur
hexafluoride (S
f
6) produced by human activities cause the thinning of the ozone
layer which protects us from UV and the cosmic rays of outer space.
5
For example,
CFCs which are used as refrigerants and aerosol agents can release chlorine that
further reacts with oxygen some thousands times over. Particulates affect visibility
and health. Nitrogen when combined with water, ends up as acid rain.
6
Methane is
formed when organic waste is decomposed in the absence of oxygen, as in landfills
and dumpsites.
The alarm was raised because of the significant thinning of the ozone layer
over Antarctica. These CFCs and other gases which were eventually carried by the
wind currents into the ozone layer reacted with the ozone molecules and broke
down the gaseous umbrella at a rate faster they could be replenished, thus creating
holes in Antarctica, Europe and the Arctic, thus leading to global warming and global
climate change.
7
The impact of climate change specifically on the Philippines is disturbing because
we have fewer resources to adopt. Our resources need special consideration due to
the countrys extreme vulnerability.
8
According to a report in 2005:
The Philippine sector most affected by climate change is agriculture
and food security. The report also indicated climate effects on the health
sector because many of the biological organisms linked to the spread of
infectious diseases are influenced by the fluctuations in climate variables.
The infectious diseases include dengue fever, malaria, and cholera. Other
climate change impacts include coral bleaching, fish kills, high mortality
of cultured giant clams and red tide. One of the most discernible effects
is the accelerated rise in sea level.
. . .
Sea level rise due to thermal expansion is a threat to this country,
given its archipelagic nature and long stretches of coast line. Rising sea
levels may contaminate groundwater sources and expose communities to
harsh storm surges.
9
5 See Vienna Convention for the Protection of the Ozone Layer, March 22, 1985. The Philippines ratified it on
July 17, 1991. The Montreal Protocol on Substances That Deplete the Ozone Layer, September 16, 1987 as
amended in London (1990), Copenhagen (1992),Vienna (1995), Montreal (1997) and Beijing (1999); Kyoto
Protocol, December 11, 1997 http://unfccc.int/kyoto_protocol/items2830, php Philippines ratified it on
February 16, 2005.
6 PHILIPPINE JUDICIAL ACADEMY, GREENING THE JUDICIARY, 12-3 (2005).
7 Ibid., p. 13.
8 ROMMEL J. CASIS (ED.), EXPERTS DIALOGUE ON PHILIPPINE CLIMATE CHANGE POLICY; MITIGATION AND ADAPTATION MEASURES,
13 (2008) citing UNFCC Impacts, supra., note 4 at 5.
9 Ibid., p. 13, citing LEONCIO A. AMADORE, CRISIS OR OPPORTUNITY; CLIMATE CHANGE: IMPACT AND THE PHILIPPINES, 5-6
(Greenpeace, 2005).
2. The Constitution and Global Treaties
The 1987 Constitution views the environment and natural resources from
three perspectives: as a human rights concern, as a social justice concern, and as a
resource allocation concern. The human rights concern is found in Article III,
Section 1 which states that No person shall be deprived of life, liberty, or property
without due process of law and in Article II, Section 16 which provides that The
State shall protect and advance the right of the people to a balanced and healthful
ecology in accordance with the rhythm and harmony of nature as well as in Article
II, Section 15 which states that The State shall protect and promote the right to
health of the people and instill health consciousness among them.
10
As a social justice concern, there is a constitutional bias in favor of subsistence
fishers, farmers, indigenous peoples and their organizations and to women who
have suffered various forms of discrimination despite their contributions to various
aspects of our national and social life.
11
As a resource allocation concern, the Constitution provides that natural
resources are owned by the State, except agricultural lands or those that have become
private by operation of law. It also enumerated modes of utilization of natural
resources, i.e. direct utilization by the State, production-sharing, joint venture and
co-production and small scale utilization. The countrys natural resources are for
the exclusive enjoyment of Filipinos. However, the President may enter into
agreements with foreign-owned corporations for large-scale exploration and
exploitation of minerals, petroleum and other mineral oils.
12
The U.N. Framework Convention on Climate Change has been the center-
piece of global efforts to combat global warming and the international communitys
most essential tools in the struggle to promote sustainable development. This treaty
was finalized in June 1992 as one of the instruments at the U.N. Conference on
Environment and Development (UNCED) held at Rio de Janeiro. It was signed by
154 States and the European Community and entered into force on 21 March 1994.
It reflected a compromise between those states which were seeking specific targets
and timetables for emissions reductions, and those which wanted a skeleton
Convention to serve as basis for future protocols. It established the principle of
common but differentiated responsibility in international environmental law which
requires international response measures aimed at addressing environmental
problems but imposing different commitments from States and their respective
capabilities. It also established (a) commitments to stabilize greenhouse concentrations
in the atmosphere at a safe level over the long term; (b) a financial mechanism and a
commitment by certain developed countries to provide financial resources for meeting
10 PHILIPPINE JUDICIAL ACADEMY, ENVIRONMENTAL LAW TRAINING MANUAL, 27-8 (2006).
11 Ibid., p. 29-30, citing CONST., Art. XII, sec. 2, par. 3; Art. XIII, sec. 7; Art. II, sec. 21; Art. XIII, sec 4; Art. II, sec.
22; Art. XII, secs. 5 & 6; Art. II, sec. 14; Art. XIII, secs. 14-16; Art. II, sec. 23.
12 Ibid., p. 31-2, citing CONST., art. XII, sec. 2; arts. XII, secs. 3-4 & 7.
9 6 IBP JOURNAL
Myrna S. Feliciano
certain incremental costs and adaptation measures; (c) two subsidiary bodies to the
Conference of the Parties; (d) a number of important guiding principles; and (e)
potentially innovative implementation and dispute settlement mechanisms.
The Philippines has signed many global conventions which addressed the
environment such as the protection of the ozone layer,
13
trade in hazardous wastes,
14
biological diversity,
15
climate change,
16
among others. Section 2, Article II of the
Philippine Constitution provides that the Philippines adopts the generally accepted
principles of international law as part of the law of the land. By the principle of
incorporation, it is but proper that the Philippines implement the provisions of the
environment treaties it has ratified. Therefore, an enumeration of the recent
implementing statutes is in order.
3. Recent Implementing Environmental Statutes
To address the global climate change and other international conventions which
the Philippines has ratified and pursuant to the constitutional provisions, the following
statutes were enacted.
3.1 Republic Act No. 8749 (1999)
The Philippine Clean Air Act of 1999 is a comprehensive air quality
management policy and program which encourages cooperation and self-regulation
among citizens and industries through the application of market-based instruments,
focuses primarily on pollution prevention, promotes public information and
encourages informed and active public participation in air quality planning and
monitoring, and formulates as well as enforces a system of accountability for short
or long-term impact of a project, program or activity.
17
The rights of citizens are recognized as follows:
18
a. to breathe clean air;
b. to use and enjoy all natural resources according to the principle of
sustainable development;
c. to participate in the formulation, planning, implementation and
monitoring of environmental policies and programs and in the decision-
making process;
13 See note 5.
14 Convention on the Control of Transboundary Movements of Hazardous Wastes, Basel, March 22, 1989.
Philippines ratified it on October 21, 1993.
15 Convention on Biological Diversity, Rio de Janeiro, June 5, 1992. Philippines ratified it on October 8, 1993.
16 U.N. Framework Convention on Climate Change, New York, May 9, 1992. Philippines ratified it on August 2,
1994.
17 Rep. Act No. 8749 (1999), sec. 3, 95 O.G. 6831 (Sept. 27, 1999).
18 Id., sec. 4.
d. to participate in any decision-making concerning policies, projects or
activities that may have an adverse impact on the environment or
public health;
e. to be informed of the nature and extent of the potential hazard of
any activity and to be served timely of any significant rise and any
level of pollution and the accidental or deliberate release into the
atmosphere of harmful or hazardous substances;
f. access to public records;
g. bring action in court or quasi-judicial bodies to enjoin all activities in
violation of environmental laws and regulations, to compel
rehabilitation and clean up of affected area and to seek the imposition
of penal sanctions against violations; and
h. to bring action in court for the compensation of personal damages
resulting from adverse environmental and public health impact of a
project or activity.
The law lays down pollution standards for different sources: stationary, motor
vehicles, smoking and other mobile sources.
19
Note that in Section 5 of Republic Act No. 9211, otherwise known as the Tobacco
Regulation Act of 2003, smoking is banned in public places such as playschools,
educational institutions, youth hostels, recreational facilities; elevators and stairwells;
buildings and premises of public and private hospitals, clinics, nursing homes and
laboratories; locations where fire hazards are present, i.e., gas station storage areas
for flammable or combustible materials; public conveyances and public facilities,
i.e., airport and ship terminals, train and bus stations, restaurants and conference
halls except for separate smoking areas; and food preparation areas.
Republic Act No. 8749 also regulates the use of fuels, additives, substances,
and pollutants, the most significant is the phasing out of leaded gasoline.
20
It also
mandates the phasing out of ozone-depleting substances, reduction of greenhouse
gas emissions, the reduction and elimination of persistent organic pollutants (POPs)
such as dioxins furans,
21
and the regulation of the use of radioactive emissions.
22
Any affected person may file an administrative action with the DENR which,
upon verified complaint or motu proprio institute administrative proceedings against
any person violating standards or limitations provided by this law or any order, rule
or regulation issued by the Department.
23
The law also establishes the filing of
citizen suits against (a) any person who violates or fails to comply with the provisions
of this Act or its implementing rules and regulations; (b) the Department or other
19 Id., secs. 6-25.
20 Rep. Act No. 8749 (1999), secs. 26-29.
21 Id., secs. 30-32.
22 Id., sec. 33.
23 Id., sec. 40.
9 8 IBP JOURNAL
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implementing agencies with respect to orders, rules and regulations issued
inconsistent with this Act; and/or (c) any public officer who willfully or grossly
neglects the performance of a duty enjoined by this Act or its implementing rules or
regulations, or abuses his authority in the performance of his duty or improperly
performs his duties under this Act or its implementing rules and regulations.
However, no suit can be filed until after 30-day notice has been given to the public
officer in the alleged violation concerned and no appropriate action has been taken
thereon. Within 30 days, the court makes a determination if the complaint is malicious
or baseless and shall accordingly discuss the action and award attorneys fees and
damages.
24
The court shall exempt such action from the payment of filing fees, except
fees for actions not capable of pecuniary estimation and shall likewise, upon prima
facie showing of the non-enforcement or violation complained of, exempt the plaintiff
from the filing of an injunction bond for the issuance of a preliminary injunction.
25
A person has also the right to file any criminal or civil action, independent of the
administrative action.
26
Since petitioners, complainants or public officers are always in danger of having
a countersuit in order to prevent the implementation of this law, a Strategic Legal
Action Against Public Participation (SLAPP) can be filed and the investigating prosecutor
or the court makes a determination within 30 days whether such countersuit has
been filed to harass, vex, exert undue pressure, or stifle such legal resources of the
person complaining of or enforcing the provisions of this Act. Upon determination
and evidence, the court shall dismiss the case and award attorneys fees and double
damages.
27
Finally, the law imposes various kinds and penalties for the three categories of
violations, namely: (1) violation of standards for stationary sources; (2) violations of
standards for motor vehicles; and (3) violations of other provisions of the Act which
range from a maximum of P100,000 pesos or 10 years imprisonment to a minimum
of P1,000 or 6 months and 1 day of imprisonment.
In the case of Metropolitan Manila Development Authority (MMDA) v. Jancom,
28
the
constitutionality of Section 20 wherein the ban on incineration was questioned before
the Supreme Court. It was ruled that the said section does not absolutely prohibit
incineration as a mode of waste disposal, rather only those burning processes which
emit poisonous and toxic fumes are banned.
24 Id., sec. 41.
25 Id., sec. 40, last par.
26 Id., sec. 42.
27 Id., sec. 43.
28 G.R. No. 147465, January 30, 2002, 375 SCRA 320 (2002).
In Henares, Jr., et al. v. Land Transportation Franchising and Regulatory Board (LTFRB),
et al.,
29
petitioner challenged the Supreme Court to issue a writ of mandamus
commanding the LTFRB and the Department of Transportation and Communication
(DOTC) to require public utility vehicles (PUVs) to use compressed natural gas
(CNG) as alternative fuel. Citing statistics, petitioners attempted to present a
compelling case for judicial action against the bane of air pollution and related
environmental hazards. Petitioners alleged that the particulate matters (PM) complex
mixtures of dust, dirt, smoke and liquid droplets caused detrimental effects on health,
productivity, infrastructure and the overall quality of life. They averred that with
hydrocarbons, oxide of nitrogen (NOx) it creates smog; with sulfur dioxide, it creates
acid rain; and with ammonia, moisture and other compounds, it reacts to form nitric
acid and harmful nitrates. Fuel emissions cause retardation and leaf bleaching in
plants. Another emission, carbon monoxide (CO), when not completely burned but
emitted in the atmosphere and then inhaled can disrupt the flow of oxygen in the
blood. With prolonged exposure CO affects the nervous system and can be lethal to
people with weak hearts. To counter the detrimental effects of CO, petitioner
proposed the use of CNG as an alternative which is mostly methane containing
small amount of propane and butane. It is colorless, odorless and considered the
cleanest fossil fuel because it produces less pollutants than coal and petroleum.
The Solicitor General commented that Section 3, Rule 45 of the Rules of
Court which explains the writ of mandamus is not a proper remedy because it
commands a tribunal, corporation or person to do an act that is required when he or
it unlawfully neglects the performance of an act which the law specifically enjoins as
a duty. The Solicitor General notes that nothing in RA 8749 prohibits the use of
gasoline and diesel by owners of motor vehicles and the law does not mention CNG
as an alternative fuel for PUVs. Moreover, it is the DENR which is tasked to
implement RA 8749 and the Department of Energy (DOE) in Section 26 to set the
specifications for all types of fuel and fuel-related products to improve fuel composition
for improved efficiency and reduced emissions. Under Section 21, the DOTC is
limited to implementing the emission standards for motor vehicles.
The issues were two-fold: Do the petitioners have legal personality to bring
their petition and should mandamus issue against respondents to compel PUVs to
use compressed natural gas as an alternative fuel?
The Supreme Court agreed that there is no dispute that petitioners have
standing to bring the case before it. However, mandamus is unavailable to pinpoint
the law that imposes an indubitable duty on respondents that will justify a grant of
the writ of mandamus compelling the use of CNG for PUVs. It appears that the
legislature should provide first the specific statutory remedy to the complex
environmental problems based before any judicial recourse by mandamus is taken.
The Petition was dismissed for lack of merit.
29 G.R. No. 158290, October 23, 2006, 505 SCRA 104 (2006).
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The Ecological Solid Waste Management Act declares the policy of the State
to adopt a systematic, comprehensive and ecological solid waste management
program.
30
It defines solid waste as referring to all discarded household waste,
commercial waste, non-hazardous, institutional and industrial waste, street sweepings,
construction debris, agricultural waste and other non-hazardous, non-toxic solid
waste.
31
In the implementation and enforcement of this Act, the local government units
(LGUs) shall be primarily responsible. Segregation and collection of solid waste
shall be conducted at the barangay level specifically biodegradable, compostable and
reusable waste but the collection of non-recyclable materials and special wastes shall
be the responsibility of the municipality or city.
32
Multi-purpose cooperatives or
associations in every LGU can undertake projects under the provisions of the Act.
33
The barangay shall be responsible for ensuing 100 per cent collection efficiency
from residential, industrial and agricultural wastes.
34
A ten-year Government Solid
Waste Management Plan shall be prepared for the re-use, recycling and composting
of wastes generated in their respective jurisdictions.
35
The plan shall identify the
specific strategies and activities taking into account the following such as availability
and provision of properly designed containers or receptacles in selected collected
points for temporary storage of solid waste; segregation of different types of wastes
for re-use, recycling and composting, handling and transfer to processing or final
disposal sites; and enforcement of ordinance to effectively implement the barangay
collection system.
36
There shall be established a Materials Recovery Facility (MRF)
in every barangay or cluster of barangays.
The LGU recycling component shall describe methods for developing the
markets for recycled materials and the feasibility of procurement reference for the
purchase of such products as well as the determination of price preference to
encourage its purchase.
37
No person owning, operating or conducting a commercial establishment in the
country shall sell or retail any product that is not placed, wrapped or packaged in
environmentally acceptable packaging. The National Solid Waste Commission shall
determine a phase-out period after proper consultation with stake holders. Its
30 Rep. Act No. 9003 (2001), sec. 2.
31 Id., sec. 3(kk).
32 Id., sec. 10.
33 Id., sec. 13.
34 Id., sec. 17(a).
35 Id., sec. 16.
36 Rep. Act No. 9003 (2001), sec. 17(c).
37 Id., sec. 17(f)(3).
violation constitutes grounds for revocation, suspension, denial or non-renewal of
the license of the establishment.
38
Republic Act No. 9003 was cited in the case of Province of Rizal, et al. v. Executive
Secretary, Secretary of Environment and Natural Resources, et al.
39
The case arose at the
height of the garbage crisis in Metro Manila and its environs when the Office of the
President set aside some parts of the Marikina Watershed Reservation extending
more or less 18 hectares since 1990 for use as sanitary landfill and similar waste
disposal for the solid wastes of Quezon City, Marikina City, San Juan City,
Mandaluyong City, Pateros, Pasig City and Taguig by virtue of Proclamation
No. 635 dated August 28, 1995.
As early as February 1989, the Sangguniang Bayan of San Mateo passed a
resolution banning the creation of dumpsites for Metro Manila garbage and to suspend
and hold in abeyance all or any part of the operation with respect to the San Mateo
Landfill Dumpsite. No action by the concerned agencies was taken. Subsequently,
the Community Environment and Natural Resource Office of DENR-4 submitted a
Memorandum that the on-going dumpsite is in violation of Presidential Decree
No. 705 or the Revised Forestry Code because it is located in the upper portion of
the Marikina Watershed Reservation and must be totally stopped in order to save
our healthy ecosystems therein, avoid much destruction, and loss of millions of
public funds over the area. Nevertheless, the Department of Environment and
Natural Resources (DENR) granted the Metro Manila Authority an Environmental
Compliance Certificate but the Laguna Lake Development Authority (LLDA)
opposed it because the dumpsites are within the watershed and due to heavy pollution,
it increased the risk of diseases. Besides, such activities would negate governments
efforts to upgrade the water quality of Laguna Lake. Despite strong objections, the
waste disposal operations continued. On July 22, 1996, petitioners filed before the
Court of Appeals a civil action for certiorari, prohibition and mandamus with
application for a temporary restraining order/writ of preliminary injunction. On
June 13, 1997, the Court of Appeals denied the application for lack of cause of
action. Hence, this review on certiorari of the decision.
The Supreme Court directed the permanent closure of the San Mateo landfill
and reversed the Court of Appeals decision. It noted two facts: the San Mateo site
has adversely affected its environs and that the sources of water should always be
protected. The Court declared that the circumstances under which Proclamation
No. 635 was passed violated Republic Act No. 7160 (Local Government Code). The
Court said:
Under the Local Government Code, two requisites must be met
before a national project that affects the environmental and ecological
balance of local communities can be implemented: prior consultation with
38 Id., sec. 30.
39 G.R. No. 129546, December 13, 2005, 477 SCRA 436 (2005).
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the affected local communities, and prior approval by the appropriate
sanggunian. Absent either of these mandatory requirements, the projects
implementation is illegal.
The Court added that these concerns are addressed by Republic Act No. 9003
approved on January 26, 2001 which mandates the formulation of a National Solid
Waste Management Framework which should include, among other things, the
method and procedure for the phase-out and the eventual closure within 18 months
from effectivity of the Act in case of existing open dumps and/or sanitary landfills
located within an aquifer, groundwater reservoir or watershed area. Any landfill
subsequently developed must comply with the minimum requirements laid down in
Section 40, specifically that the site selected must be consistent with the overall land
use plan of the local government unit and that the site must be located in an area
where the landfills operation will not detrimentally affect sensitive resources such
as aquifers, groundwater reservoirs or watershed areas. The petition was granted.
Former President Gloria Macapagal-Arroyo set a June, 2009 deadline for LGUs
to comply with RA 9003 which affirmed a December 2008 directive instructing all
government agencies and LGUs to reduce waste volume by 50% within 6 months and
thus cut emissions from dumps. Prior to this, the Environment Secretary issued in
May 2008, a 6-month ultimatum for non-compliant LGUs to shut down over 1,000
polluting dumps long outlawed by RA 9003. To date, only 2,701 barangays out of
42,000 barangays nationwide have Materials Recovery Facilities (MRFs). In Metro
Manila, only 435 barangays have MRFs. The metropolis has 1,695 barangays with
waste diversion rate of only 28%.
40
The Philippine Clean Water Act of 2004 provides for a comprehensive water
quality management consistent with the protection, preservation and revival of the
quality of our fresh, brackish and marine waters.
41
It shall primarily apply to the
prevention, abatement and control of pollution from water sources. To pursue
sustainable development, it mandates the formulation of an integrated water quality
management framework which depends heavily on LGUs because the DENR in
coordination with the National Water Resources Board (NWRB) designates certain
areas as water quality management areas using appropriate physiographic units such
as watershed, river basins or water resources regions as criteria
42
and similar
hydrological, hydro-geological, meteorological or geographic conditions. Said
management area is governed by a board composed of mayors and governors of
member local government units and representatives of relevant national government
agencies, duly registered NGOs, water utility sector and the business sector. The
governing board shall formulate strategies to coordinate policies necessary for
40 100 O.G. 5041 (Aug. 2, 2004).
41 Rep. Act No. 9275 (2004), sec. 2.
42 Id., sec. 5.
effective implementation in accordance with those established standards in the
framework and to monitor compliance with the Action Plan as well as the preparation
of a national program on sewerage and septage management.
43
Each LGU shall
have the following powers and functions:
a) monitoring of water quality;
b) emergency response;
c) compliance with the framework of the Water Quality Management
Action Plan;
d) to take active participation in all efforts concerning water quality
protection and rehabilitation; and
e) to coordinate with other government agencies and civil society and
the concerned sectors in the implementation of measures to prevent
and control water pollution.
44
The DENR shall gradually devolve to the LGUs, and to governing boards, the
authority to administer some aspects of water quality management and regulation,
including but not limited to, permit issuances, monitoring and imposition of
administrative penalties, when, upon the DENRs determination, the LGU or the
Governing Board has demonstrated readiness and technical capability to undertake
such functions.
45
A multi-sectoral group shall be established in each management
area to effect water quality surveillance and monitoring network including sampling
schedules and other similar activities.
46
The DENR shall require program and project proponents to put up an
Environmental Guarantee Fund (EGF) as part of the environmental management
plan attached to an Environmental Compliance Certificate (ECC). The EGF shall
finance the maintenance of the health of the ecosystems and especially the
conservation of watersheds and aquifers affected by the development, and the needs
of emergency response, clean-up or rehabilitation of areas that may be damaged
during, after and until the lapse of the period indicated in the ECC. The EGF may
be in the form of a trust fund, environmental insurance, surety bonds, letters of
credit, self-insurance and other instruments or combinations thereof.
47
The polluter pays principle is applied under this law because any person
who causes pollution in or pollutes water bodies in excess of the applicable and
prevailing standards, shall be responsible to contain, remove and clean-up any
pollution incident at his own expense to the extent the same water bodies have been
rendered unfit for utilization and beneficial use. If he fails to do so immediately, the
DENR and other concerned government agencies shall immediately conduct
43 Id.,
44 Id., sec. 20.
46 Id., sec. 5.
47 Id., art. 15.
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containment, removal and clean-up operations but the expenses incurred must be
reimbursed by the persons found to have caused the pollution.
48
1.1.1 Republic Act No. 9483 (2007)
49
In view of the extensive damage caused by the sinking of the tanker Solar 1
during rough weather, spilling its load of 2.1 million barrels of crude oil into the sea
and along the Guimaras-Iloilo coastline, the Oil Pollution Compensation Act of 2007
was enacted. This law implements the provisions of the 1992 International
Convention on Civil Liability for Oil Pollution Damage and the 1992 International
Convention on the Establishment of an International Fund for Compensation for
Oil Pollution damages, and provides penalties for violations thereof. It imposes
strict liability for oil pollution damage on the owner of the ship at the time of the
incident; or where the incident consists of a series of occurrences, at the time of the
first occurrence.
50
Following the occurrence of a particular incident, the owner shall be required
to constitute a fund for the total sum representing the limit of his liability with the
Maritime Industry Authority (MARINA) to cover incidents causing liability.
51
All
owners shall be required annually by MARINA to maintain insurance or other
financial security for pollution damage in sums fixed by applying the limits of liability
under this Act.
52
An action for compensation on account of pollution damage which occurred in
the territory may be brought before the Regional Trial Court against the owner of
the polluting ship or insurer or other person providing financial security of the said
owners liability for pollution. A foreign corporation, partnership, association or
individual whether or not licensed to transact business in the Philippines, providing
such insurance or financial liability shall be considered doing business in the
Philippines and shall be subject to the jurisdiction of the regular judicial courts of
the country.
53
The Philippine Coast Guard shall investigate, motu proprio or through written
undertaking of a complainant, any incident claim for compensation or violation of
this Act, and shall file an appropriate action with the RTC. It shall likewise provide
the complainant necessary technical evidence or any assistance, whether or not
testimonial or documentary insofar as the claim for compensation or violation is
concerned.
54
48 Id., sec. 16.
49 103 O.G. 6638 (Oct. 15, 2007).
50 Rep. Act No. 9483 (2007), sec. 6.
51 Id., sec. 11.
52 Id., sec. 12.
53 Id., sec. 17.
54 Id., sec. 17.
The filing of this action shall only require payment of filing fees equivalent to
ten per centum (10%) of the regular Supreme Court rates. However, the indigent plaintiffs
shall be exempt from payment of docket and other lawful fees, and of transcripts of
stenographic notes. These fees shall be a lien on any judgment rendered in the case
favorable to the indigent, unless the Court otherwise provides.
55
When compensation is not obtained or satisfied under the 1992 Civil Liability
Convention, the claimant may seek compensation under the 1992 Fund Convention.
The RTC shall furnish the IOPC Fund with its certified decision, together with
pertinent documents on a claim for pollution damages. If it is insufficient to satisfy
the claims of those who are entitled to compensation, the amount of compensation
of each client shall be distributed pro rata.
56
The IOPC Fund may intervene as a
party to any legal proceeding instituted against the owner of a ship or his guarantor
under Art. IX of the 1992 Civil Liability Convention.
57
A novel principle was adopted by the Supreme Court in the case of Metropolitan
Manila Development Authority, et al. v. Concerned Residents of Manila Bay in terms of
enforcing environmental laws.
58
Respondents filed a complaint on December 29,
1999 before the RTC against several government agencies
59
for the clean-up,
rehabilitation and protection of Manila Bay. The complaint alleged that the water
quality of Manila Bay had fallen below the allowable standards set by the Philippine
Environment Code. This environmental aberration stemmed from the reckless,
wholesale, accumulated and ongoing acts or commission resulting in the clear and
present danger to public health and in the depletion and contamination of marine
life in Manila Bay, for which all the aforementioned government agencies must be
held jointly and/or solidarily liable. Thus, they were collectively ordered to clean-up
Manila Bay and to restore its water quality to Class B waters fit for swimming, skin
diving and other forms of contact recreation. Respondents alleged that the continued
neglect of petitioners in abating the pollution of Manila Bay constituted a violation
of about nine environmental laws.
Respondents, as plaintiffs, prayed that the petitioners be ordered to clean the
Manila Bay and to submit a concerted plan of action for the purpose. The Regional
Trial Court (RTC) rendered a decision in favor of respondents ordering the
government agencies jointly and solidarily to clean up and rehabilitate Manila Bay
and with the DENR as lead agency to submit a coordinated and concerted scheme of
action for the rehabilitation and restoration of the Bay within 6 months.
56 Id., sec. 18.
57 Id., sec. 19.
58 G.R. Nos. 171947-48, December 18, 2008.
59 Metropolitan Manila Development Authority (MMDA), Department of Environment and Natural Resources
(DENR), Department of Education, Culture and Sports (DECS), Department of Health (DOH), Department of
Agriculture (DA), Department of Public Works and Highways (DPWH), Department of Budget and Management
(DBM), Philippine National Police (PNP), Maritime Group and Department of the Interior and Local Government
(DILG).
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Petitioners appealed to the Court of Appeals (CA) while the DENR and the
other agencies filed their petition with the Supreme Court. The petitions were sent
to the Court of Appeals for consolidation. In the main, petitioners argued that
Presidential Decree No. 1152 related only to specific pollution incidents and does
not cover cleaning in general. It raised concerns about the lack of funds for the
purpose. The CA denied the appeal and affirmed the RTC decision in toto. Hence,
the petition was filed based on the following issues:
1) Whether or not Sections 17 & 20 of PD 1152 envisage a clean-up in
general or limited to specific pollution incidents.
2) Can petitioners be compelled by mandamus to clean-up and rehabilitate
Manila Bay?
The Supreme Court agreed with the respondents by stating that petitioners
obligation to perform their duties as defined by law, on one hand, and how they are
to carry out such duties on the other, are two different concepts. While the
implementation of the MMDAs mandated task may entail a decision-making process,
the enforcement of the law or the very act of doing what the law exacts to be done is
ministerial in nature may be compelled by mandamus.
The MMDAs duty in the area of solid waste disposal is set forth in the
Environment Code, RA 9003 and in its charter. Any suggestion that the MMDA
has the option to perform its solid waste disposal-related duties ought to be dismissed
for want of legal bases. A perusal of the other petitioners respective charters or
similar enabling statutes and pertinent laws would yield this conclusion. These
government agencies are enjoined, as a matter of statutory obligation, to perform
certain functions directly or indirectly relating to the clean-up, rehabilitation,
protection and preservation of Manila Bay. They are precluded from choosing not
to perform these duties for the enabling laws and issuances are in themselves clear,
categorical and complete as to what are the obligations and mandate of each agency
under the law.
As to the issue whether Sections 17 & 20 of the Environment Code included
cleaning in general, the Court said: When the Clean Water Act (RA 9275) took
effect, its subject, Section 16 on Clean Up Operations amended the counterpart provision,
(Sec. 20) of the Environment Code (PD 1152), Sec. 17 of PD 1152 continues, however,
to be operational. Section 20 merely designates the DENR as the lead agency in the
clean-up operations. As to the arguments that the definitions of clean-up operations
and accidental spills in Section 62(g) & (h), Section 20 is limited only to water
pollution incidents which are situations that presupposes the occurrence of specific
pollution events requiring containment, removal and cleaning operations. However,
Section 17 is not hobbled by such limiting definition because the phrases clean-up,
operations, and accidental spills do not appear in said Section 17, not even in the
Chapter where it is located. Section 17 requires them to act even in the absence of
a specific pollution incident, as long as water quality was deteriorated to a degree
where its state will adversely affect its usage. This section commands concerned
government agencies, when appropriate, to take such measures as may be necessary
to meet the prescribed water quality standard. Section 17 of the Environment
Code comes into play and the specific duties of the agencies to clean up are mandated
even if there are no pollution incidents staring at them. Moreover, they seem to
overlook the fact that the pollution of Manila Bay is of such magnitude that it is
impossible to draw the line between a specific and a general pollution incident. Also,
Section 16 of RA 9275, previously Section 20 of PD 1152, covers a general clean-up
situation. The clean-up and/or restoration of Manila Bay is only an aspect and the
initial stage of the long-term solution. After the rehabilitation process, it is imperative
that wastes and contaminants found in the rivers, inland bays and other bodies of
water be stopped from reaching Manila Bay.
The Petition was denied and the CA and RTC decisions were affirmed but
with modifications in view of subsequent developments or supervening events in
this case. The DENR, as the primary government agency responsible for its
enforcement and implementation, was directed to fully implement its Operational
Plan for the Manila Bay Coastal Strategy for its rehabilitation, restoration, and
conservation of Manila Bay at the earliest possible time. It was ordered to call
regular coordination meetings with concerned government agencies to ensure
successful implementation of the aforesaid plan of action in accordance with indicated
completion schedules. The heads of petitioner agencies, in line with the principle of
continuing mandamus shall, from the finality of this decision, submit to the Court
a quarterly progressive report of the activities undertaken in accordance with this
Decision.
Atty. Antonio A. Oposa, Jr. filed a motion to cite in contempt the government
officials concerned for failure to report to the Supreme Court.
60
Except for the
DENR and MMDA, which have submitted their reports, the Supreme Court ordered
them to comment in ten days why they should not be cited in contempt. To date,
there is a Technical Committee assisting the Supreme Court in assessing the report
on the clean-up of Manila Bay.
In Bangus Fry Fisherfolk, et al. v. Lanzanas, et al.,
61
an ECC was issued in favor of
respondent National Power Corporation authorizing the construction of a temporary
mooring facility in Minolo Cove, Sitio Minolo, San Isidro, Puerto Galera, Oriental
Mindoro, which has been declared as a mangrove area and breeding ground for
bangus fry, an eco-tourist zone. Petitioners filed a complaint with the Regional Trial
Court of Manila, for the cancellation of the ECC and for the issuance of a writ of
injunction. The trial court dismissed the complaint for non-exhaustion of
administrative remedies and for lack of jurisdiction to issue the injunctive relief.
Hence, the filing of the petition in the High Court.
60 Alcuin Papa, 6 GMA Men to Face Contempt Raps: Eco-lawyer Presses Manila Bay Clean-up, Philippine
Daily Inquirer, August 24, 2009, p. A-1; A-10.
61 G.R. No. 131442, July 10, 2003, 405 SCRA 630 (2003).
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In denying the petition, the Supreme Court ruled that the petitioners cause
of action is the alleged illegality of the issuance of the ECC and such complaint is
not capable of pecuniary estimation. It falls within the exclusive and original
jurisdiction of the RTCs under Section 19(1) of Batas Pambansa Blg. 129, as amended
by RA 7691. Anent the jurisdiction to issue injunctive writs, only the Supreme
Court can do so under PD 1818 and later under RA 8975 which superseded it.
The Court likewise ruled that petitioners bypassed the Secretary of the DENR
when they immediately filed their complaint with the Manila RTC, depriving the
DENR Secretary the opportunity to review the decision of his subordinate. Under
the Procedural Manual for DAO 96-37 and applicable jurisprudence, petitioners
omission rendered their complaint dismissible for lack of cause of action. The RTC
decision was affirmed.
The Biofuels Act of 2006 aims to reduce the countrys dependence on imported
fuels with due regard to the protection of public health, the environment and natural
resources. It mandates to develop and utilize indigenous renewable and sustainably-
sourced clean energy sources as well as to mitigate toxic and greenhouse (GHG)
emissions.
62
Thus, all liquid fuels for motors and engines sold in the Philippines
shall contain locally-sourced biofuels components by setting time limits on the blending
of bioethanol with gasoline fuel.
63
To encourage investments in the production,
distribution and use of locally-produced biofuels, additional incentives are given
such as specific and value-added taxes, exemption from waste water charges, and
financial assistance from government institutions. To implement and monitor the
supply and utilization of biofuels and biofuel blends as well as to recommend
appropriate measures in cases of shortage of feedstock supply, a National Biofuel
Board (NBB) is established, with the Secretary of the Department of Energy as
Chairperson.
64
To encourage the development and utilization of renewable energy resources
and to accelerate the exploration and development of renewable energy resources
as well as to increase the utilization of renewable energy by institutionalizing the
development of national and local capabilities in the use of renewable energy systems,
the Renewable Energy Act of 2008 was enacted.
65
Since all stakeholders in the
electric power industry contribute to the growth of the renewable industry, the
National Renewable Energy Board (NREB) is created.
66
It shall set the minimum
62 Rep. Act No. 9367 (2007), sec. 2.
63 Id., sec. 5.
64 Id., secs. 7-10.
65 Rep. Act No. 9513 (2008), sec. 2.
66 Id., sec. 6.
percentage of generation from eligible renewable energy resources and determine
to which sector a Renewable Portfolio Standard (RPS) shall be imposed on a per grid
basis. To accelerate development, a feed-in tariff system for electricity produced
from wind, solar, ocean, run-of-river hydropower and biomass is hereby mandated.
67
The Department of Energy (DOE) shall also establish the Renewable Energy
Market (REM) and shall direct the Philippine Electricity Market Corporation (PEMC)
to implement changes to the Wholesale Electricity Spot Market (WESM) in order
to incorporate rules specific to the operation of the REM under the WESM. The
PEMC shall establish a Renewable Energy Registrar which shall issue, keep, verify
RE certificates corresponding to energy generated from eligible Renewable Energy
facilities to be used for compliance with the RPS.
68
The DOE shall establish a
Green Energy Option program which provides end-users the option to choose
Renewable Energy resources as their sources of energy. The end-user who will
enroll under this program should be informed by way of its monthly electric bill,
how much of its monthly energy consumption and generation charge is provided by
Renewable Energy facilities. These distribution utilities shall enter into net-metering
agreements with qualified end-users who will be installing the RE system.
69
The government share on existing and new Renewable Energy development
projects shall be equal to 1% of the gross income of Renewable Energy resource
developers resulting from the sale of renewable energy produced and such other
income incidental to it except for indigenous geothermal energy, which shall be 1.5%
of gross income.
70
All Renewable Energy projects shall comply with existing DENR
environmental regulations and/or that of any other concerned government agency.
71
General incentives for renewable energy projects and activities, including hybrid
systems are income tax holidays, duty-free importation of Renewable Energy
machinery, equipment and materials, special realty tax rates on equipment and
machinery, net operating loss carry-over, corporate tax rate, zero percent value-added
tax rate, cash incentive of renewable energy developers for missionary electrification,
tax exemption of carbon credits and tax credit on domestic capital equipment and
services.
72
3.6 Republic Act No. 9512 (2008), otherwise known as the National
Environmental Awareness and Education Act of 2008
The Department of Education (DepEd), the Commission on Higher Education
(CHED), the Technical Education and Skills Development Authority (TESDA), the
67 Id., sec. 7.
68 Rep. Act No. 9513 (2008), sec. 8.
69 Id., sec. 9.
70 Id., sec. 13.
71 Id., sec. 14.
72 Id., sec. 15.
110 IBP JOURNAL
Myrna S. Feliciano
Department of Social Welfare and Development (DSWD), in coordination with the
DENR, Department of Science and Technology (DOST) and other relevant agencies,
shall integrate environmental education in its school curricula at all levels, whether
public or private, including barangay daycare, preschool, non-formal, technical
vocational, professional level, indigenous learning and out-of-school youth courses
or programs. Environmental education shall encompass environment concepts and
principles, environmental laws, the state of international and local environment,
local environmental best practices, the threats of environmental degradation and
their impact on human well-being, the responsibility of the citizenry to the
environment and the value of conservation, protection, and rehabilitation of natural
resources and the environment in the context of sustainable development. It shall
cover both theoretical and practicum modules comprising activities, projects,
programs, including, but not limited to, tree planting, waste minimization, segregation,
recycling and composting; freshwater and marine conservation; forest management
and conservation; relevant livelihood opportunities and economic benefits and such
programs and undertakings to aid in the implementation of the different
environmental protection laws.
73
The DepEd, CHED, TESDA, DENR, DOST and other relevant agencies in
consultation with the experts on the environment and the academe, shall lead in the
implementation of public education and awareness programs on environmental
protection and conservation through collaborative inter-agency and multi-sectoral
effort at all levels.
74
The DENR has the primary responsibility of periodically
informing all agencies concerned on current environmental updates, including
identifying environmental education issues for national action and providing strategic
advice on environmental education activities. The DepEd, CHED, TESDA, DENR,
DOST, DSWD and barangay units shall ensure that the information is disseminated
to the students.
75
The DOST is mandated to create programs that will ensure that students
receive science-based quality information on environmental issues to encourage the
development of environmental-friendly solutions, devices, equipment and facilities.
76
The CHED and TESDA shall include environmental education and awareness
programs and activities in the National Service Training Program under Republic
Act No. 9163 as part of the Civil Welfare Training Service component required for
all baccalaureate degree courses and vocational courses with a curriculum of at least
two (2) years.
77
73 Rep. Act No. 9512 (2008), sec. 3.
74 Id., sec. 6, 1
st
par.
75 Id., sec. 6, 2
nd
par.
76 Id., sec. 6, 3
rd
par.
77 Id., sec. 4.
Capacity-building programs nationwide, such as trainings, seminars, workshops
on environmental education, development and production of environmental
education materials, teacher-education courses and related livelihood programs shall
be implemented.
78
The month of November every year shall be known as
Environmental Awareness Month throughout the Philippines.
79
3.7 Republic Act No. 9729 or the Climate Change Act of 2009
As a party to the UN Framework Convention on Climate Change, the
Philippines adopts the ultimate objective of the Convention which is the stabilization
of greenhouse gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system to be achieved within
a time frame sufficient to allow ecosystems to adapt naturally to climate change, to
ensure that food production is not threatened and to enable economic development
to proceed in a sustainable manner.
80
This statute recognizes the vulnerability of the Philippine archipelago and its
local communities, particularly the poor, women, and children to potential dangerous
consequences of climate change such as rising seas, changing landscapes, increasing
frequency and/or severity of droughts, fires, floods and storms, climate-related illness
and diseases, damage to ecosystems, biodiversity loss that affect the countrys
environment, culture, and economy.
81
This law mainstreams climate change into government policy formulations,
establishes the framework strategy and program on climate change. Towards this
end, the State adopts the principle of protecting the climate system for the benefit
of humankind, on the basis of climate justice or common but differentiated
responsibilities and the Precautionary Principle to guide decision-making in climate
risk management.
For this purpose, an independent and autonomous Climate Change
Commission is established attached to the Office of the President. It shall be the
sole policy-making body of the government which is tasked to coordinate, monitor
and evaluate the programs and action plans of the government relating to climate
change.
82
In view thereof, the State shall cooperate with the global community in
the resolution of climate change issues including disaster risk reduction.
It is also a policy of the State to incorporate gender-sensitive, pro-children and
pro-poor perspectives in all climate change and renewable energy efforts, plans and
programs.
83
78 Id., sec. 7.
79 Id., sec. 5.
80 Rep. Act No. 9729 (2009), sec. 2, 2
nd
para.
81 Ibid.
82 Id., sec. 4.
83 Ibid.
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Myrna S. Feliciano
The Climate Change Commission is composed of the President of the
Philippines as Chairperson and three Commissioners to be appointed for a term of
six years by the President, one of whom shall serve as the Vice-Chairperson and
Executive Officer of the Climate Change Office.
84
It has an Advisory Board
composed of the following: Secretaries of the Department of Agriculture, Energy,
Environment and Natural Resources, Foreign Affairs, Health, Interior Local
Government, National Defense, Public Works and Highways, Science and Technology,
Social Welfare and Development, Trade and Industry, Transportation and
Communication, Director-General of NEDA, Director-General of National Security
Council; Chairperson of National Commission on Women; the Presidents of the
Leagues of Provinces, Cities, Municipalities, Liga ng mga Barangay, Representatives
each from the academe, business sector and non-governmental organizations and at
least one of the sectoral representative from the disaster risk reduction community.
The representatives shall be appointed by the President from a list of nominees by
their respective groups for a term of six years unless withdrawn by the sector they
represent.
85
Among the powers and functions of the Commission are: ensure the
mainstreaming of climate change in synergy with disaster risk reduction into the
national, sectoral and local development plans and programs; create an enabling
environment that shall promote broader multi-stakeholder participation and integrate
climate change mitigation and adaptation; formulate strategies on mitigating CHG
and other anthropogenic causes of climate change; and formulate and update guidelines
for determining vulnerability to climate change impacts and adaptation assessments
and facilitate the provision of technical assistance for their implementation and
monitoring.
86
A National Panel of Technical Experts of practitioners in disciplines related to
climate change, including disaster risk reduction shall be constituted by the
Commission. They shall provide technical advice to the Commission in climate
science, technologies and best practices for risk assessment and enhancement of
adaptive capacity of vulnerable human settlements to potential impacts of climate
change.
87
The Commission shall also formulate a Framework Strategy on Climate
Change which serves as a basis for a program of climate change planning, research
and development, extension, and monitoring of activities to protect vulnerable
communities from the adverse effects of climate change. It shall be formulated
based on climate change vulnerabilities, specific adaptation needs and mitigation
potential, all in accordance with international agreements. It shall be reviewed every
three years, or as may be deemed necessary.
88
A National Climate Change Action
84 Id., sec. 8.
85 Id., sec. 5.
86 Id., sec. 9
87 Id., sec. 10.
88 Id., sec. 11.
Plan shall be formulated in accordance with the Framework.
89
Civic organizations,
NGOs, academe, peoples organizations, the private and corporate sectors and other
concerned stockholder groups shall assist in the development and implementation
of the National Climate Change Action Plan in coordination with the Commission.
90
The Local Government Units (LGUs) shall be the frontline agencies in the
formulation, planning and implementation of climate change plans in their respective
areas, consistent with the Local Government Code, the Framework and the Action
Plan.
91
Government agencies such as the DepEd, DILG, DENR, DFA, the Philippine
Information Agency, as well as government financial institutions, are given their
respective roles to ensure the effective implementation of the framework strategy
and program on climate change.
92
4. Towards Environmental Justice
Among the Principles on the Role of Law and Sustainable Development adopted
at the Global Judges symposium held in Johannesburg, South Africa on August 20,
2002, is that an independent judiciary and judicial process is vital for the
implementation, development and enforcement of environmental law, and that
members of the Judiciary, as well as those contributing to the judicial process at the
national, regional and global levels, are crucial partners for promoting compliance
with, and the implementation of international and national environmental justice.
93
On July 5-6, 2007, the Philippines participated in the Asian Justices Forum on
the Environment Sharing Experience to Strengthen Environmental Adjudication
in Asia which was held at Mandaluyong City, with former Chief Justice Reynato S.
Puno as keynote speaker. As a result, Chancellor Ameurfina A. Melencio-Herrera
of the Philippine Judicial Academy made the following recommendations:
1. Designation of exclusive courts to handle environmental cases;
2. Expansion of jurisdiction of forestry courts;
3. Raffling of environmental law cases in the Court of Appeals;
4. Capacity-building programs to be conducted by PhilJA.
Initially, all judges and clerks of court of first and second-level courts
94
were
ordered to conduct an inventory of all environmental cases. Likewise, the Court of
Appeals submitted a list of 74 DENR cases filed from November 2001 to June 2007.
89 Id., sec. 13.
90 Id., sec. 16.
91 Id., sec. 14.
92 Id., sec. 15.
93 Johannesburg Principles, par. 5.
94 OCA Circular No. 34-08, dated March 19, 2008.
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Myrna S. Feliciano
As a result, the Supreme Court en banc passed a resolution
95
approving said
recommendations by:
1. Designating 117 environmental courts; 45 forestry courts from the
101 courts so designated under Administrative Order No. 150-593,
July 26, 1995; 48 1
st
level courts and 24 2
nd
level trial courts, to handle
all types of environmental cases, including violations of the Fisheries
Code (RA 8550) and violations of the NIPAS Act (RA 7586), among
others, except those cases within the jurisdiction of quasi-judicial
bodies;
2. Considering all single sala 1
st
and 2
nd
level courts as special courts to
hear and decide environmental cases, in addition to their regular duties;
3. Raffling all appealed environmental cases in the Court of Appeals
court-wide; and
4. Conducting capacity-building programs for the personnel of the
aforesaid environmental courts and the appellate courts after the
formal designation of said courts.
Pursuant to this, the PhilJA proceeded with the training of judges using the
Academys publications, namely, Greening the Judiciary; Learning Modules on the
Environment (2005) and Environmental Law Training Manual (2006) which was published
with the assistance of leading environmentalists.
Ensuring that the third-generation human rights are upheld, the Supreme Court
held a Forum on Environmental Justice: Upholding the Right to a Healthful and
Balanced Ecology on April 16-17, 2009, simultaneously in Baguio, Iloilo and Davao
Cities. Participants in the Forum included judges, non-government organization
members, government representatives, the academe and other stakeholders. It has
led to the signing of Multi-sectoral Memorandum of Agreement to further strengthen
and implements of the countrys environmental laws. It also resulted in valuable
inputs on the Draft Rule of Procedure for Environmental Cases, which reflects
concerns and recommendations of all stakeholders and covers all stages of litigation.
96
On April 13, 2010, the Supreme Court en banc approved the Rules of Procedure
for Environmental Cases,
97
effective April 29, 2010. The Rules govern the procedure
in civil, criminal and special civil actions before the Regional Trial Courts,
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts
and Municipal Circuit Trial Courts involving enforcement or violations of
environmental and other related laws, rules, and regulations.
98
95 A.M. No. 07-11-12-SC, dated November 20, 2007 as implemented by SC Adm. Order No. 23-08 dated January
28, 2008, Designation of Special Courts to Hear, Try and Decide Environmental Cases.
96 High Court Convenes Forum on Environmental Justice, 10 Bench Mark 1 (March 2009).
97 A.M. No. 09-6-8-SC, dated April 13, 2010.
98 Id., sec. 2.
The salient features of the Rules are:
99
a. It liberalized locus standi and citizens suits;
b. Speedy disposition of cases:
Civil Cases. Procedural innovations are introduced at filing wherein
all evidence supporting the cause of action should be submitted; certain
pleadings have been prohibited under Summary Procedure; extensive
use of pre-trial; use of affidavits in lieu of direct-examination and
duration of trial abbreviated to one year, subject to extension for
justifiable cause;
Criminal Cases. Extensive use of pre-trial to clarify and simplify the
issues, use of affidavits in direct-examination, abbreviated period of
trial to one year; and authorizing the judge to enter a plea of not guilty
in instances where the accused fails to appear at arraignment being a
requisite for the availment of bail;
Special Civil Actions. Two special writs are provided: the writs of
kalikasan and continuing mandamus. In addition, the writ of kalikasan
incorporates the prohibition of certain pleadings and given the same
level of priority as the writs of habeas corpus, amparo, and habeas data.
Summary proceedings have been adopted for the writ of continuing
mandamus to facilitate speedy resolution.
c. Consent Decree in order to avail the benefits of negotiating a settlement
including the preservation of litigation resources and prevention of any
further delay in the implementation of regulatory programs;
d. Remedial measures:
Environmental Protection Order (EPO) refers to an order issued by
the Court directing or enjoining any person or government agency to
perform or desist from performing an act in order to protect, preserve,
or rehabilitate the environment. It can be issued as a Temporary
Environmental Protection Order (TEPO) as an ancillary remedy or
permanent one (EPO). These two remedies are also available in
criminal cases under the Rules;
Writ of Continuing Mandamus;
Writ of Kalikasan seeks to address the potentially exponential nature
of large-scale ecological threats and the questions of jurisdiction arising
from it by petitioning the Supreme Court or Court of Appeals;
e. Application of the precautionary principle where full scientific certainty
shall not be required of the party alleging environmental damage. The
principle, however, does not apply in determining criminal liability.
99 Id., Rationale to the Rules of Procedure for Environmental Cases, p. 66-97.
116 IBP JOURNAL
Myrna S. Feliciano
5. Conclusion
While the Philippines acts fast when it comes to signing international
conventions and enacting laws to protect the environment, sadly, these measures
are seldom enforced. For example, officials need to pay more attention to countrys
more than 800 rivers and river systems which are either vanishing or dying from
physical, biological or chemical damage. Then there are the open dumps and the
controlled dumps that should have ceased to exist in 2004 and 2006, respectively, as
provided by RA 9003, but are still around and continue to pose real toxic threat to
public health, the environment and climate.
According to former DENR Secretary Lito Atienza,
A countrys progress would always be linked to its efforts in
protecting and preserving the environment. We cannot talk of progress
if we cannot clean up the environment. These laws are nothing but scraps
of paper if we do not enforce them.
100
Most current environmental problems are essentially the result of peoples
activities and their attitude towards the socio-cultural and natural environments.
Historically, individual and societal values have not always been in the best interest
of preserving a high-quality environment. The present-day environmental crisis
demands a change in attitude and values in order that initiatives can be taken to
rescue the environment from total destruction.

100 RA 9003 Just a Scrap of Paper, Philippine Daily Inquirer, March 24, 2009, p. A-14.
An Environmental Writ: The Philippines Avatar
An Environmental Writ:
The Philippines Avatar
Francis N. Tolentino*

I. Introduction

The Philippines was once described as follows:

A world you didnt think still existed [an] island paradise Where
tropical nights rain stars. Dazzling blue waters beckon to the pristine
white sands bleached even whiter by the sun. And coconut trees bend to
listen to the waves. Where life is an idyll and smiles are dreamy.
1

The movie Avatar, released in 2009, is classified by critics as an epic science
fiction film.
2
Yet, the scenes that it painted and the story that it exposed represent a
factual milieu that is all too familiar to many nations. The movie narrated a
spectacular world threatened by corporate greed and the classic battle between a
corporation and the few who are willing to stand against it. In the movie, the good
guys won, but for the Philippines, this ending remains bleak and farfetched, to say
the least.

In the last 40 years, increasing urbanization, illegal logging, mining operations,
forest fires and population expansion
3
have led to the loss of a third of the
Philippines forest cover.
4
Of the 1,196 known species of amphibians, birds, mammals
and reptiles in the country, only about five percent (5%) are under some form of
protection.
5
Moreover, overfishing and destructive fishing has decreased the quality
of marine resources by 90%, amounting to an estimated cost of $420 million annually
in lost revenues.
6
Increasing water pollution is degrading the countrys groundwater,
rivers, lakes, and coastal areas, and the quality of half of the countrys rivers fall
below water quality norms. Ninety percent (90%) of sewage is untreated and not
* AB Ateneo de Manila University; LLB Ateneo Law School, 1984; LLM University of London; SJD Candidate,
Tulane University Law School (New Orleans, USA).
1 Philippine Airlines advertisement cited in Robin Broad and John Cavanagh, Plundering Paradise: The Struggle
for the Environment in the Philippines (1993).
2 Avatar (2009), available at http://movies.yahoo.com/movie/1809804784/info (last visited Mar. 21, 2010).
3 World Bank Report on the Philippine Environment, http://web.worldbank.org/WBSITE/EXTERNAL/
C O U N T R I E S / E A S T A S I A PAC I F I C E X T / E X T E A P R E GT O P E N V I RO N ME N T /
0,,contentMDK:20266328~menuPK:3558267~pagePK:34004173~piPK:34003707~theSitePK:502886,00.html
(last visited on 6 March 2010).
4 Forest Statistics in the Philippines, http://rainforests.mongabay.com/20philippines.htm (last visited 6 March
2010).
5 Id.
6 Environmental Problems in the Philippines, http://www.panda.org/who_we_are/wwf_offices/philippines/
environmental_problems__in_philippines/ (last visited 6 March 2010).
118 IBP JOURNAL
Francis N. Tolentino
disposed in an environmentally sound manner. Less than ten percent (10%) of the
countrys total population is connected to sewers and others rarely maintain adequate
on-site sanitation.
7

Despite the increasing recognition of the immediate need to address these
environmental concerns, inadequate enforcement of environmental laws still hounds
the country. Because of the rapid destruction of the countrys natural resources,
aggravated by near-sighted governmental polices primarily geared toward economic
growth and development, those that suffer the most from this ecological backlash
are those afflicted with abject poverty and the environment in general. For the
Philippines, this means that the brunt of the consequences will be borne by 32.9% of
the population, or about 27,616,888 citizens.
8
Mahesh Chander Mehta is not off the
mark when he suggests that, in the Third World, the problems of environmental
degradation have particularly worrisome overtones. He writes:

In its race for modernization, the Third World has blindly adopted the
Western model for development of capital and resource intensive
industrialization, urbanization and mechanization, and chemicalization
of agriculture in a false belief that this type of rapid growth will
eventually trickle down and eradicate poverty. As a consequence, we
have paid a heavy price. Development that does not respect nature
rebounds on man. Resources are exhausted, ecosystems collapse, species
disappear, and peoples lives, health, livelihoods, and their very survival
are threatened.
9

These predicted crises have given birth to a new world view, which mandates
government agencies and decision-makers to take into account environmental values
together with other governmental considerations. Particularly, these urgencies have
prompted the Philippine judiciary to take a more active role in the enforcement of
environmental values and the protection of environmental rights.
10

In this paper, a proposed environmental writ will be referred to as the Writ of
Gaia, a term borrowed from James Lovelocks Gaia Hypothesis, which classifies the
planet earth as not only an ecosystem with interconnected parts, but a whole living
organism.
11
It will also undertake to discuss the role of the judiciary in light of the
national environmental policy, learnings and practices in different jurisdictions, and
ultimately, aims to justify the need for its adoption for the advancement of the
Filipinos constitutionally - guaranteed right to a healthy environment.
12

7 World Bank Report on the Philippine Environment, Supra Note 3.
8 Philippine Poverty Statistics, http://www.nscb.gov.ph/poverty/2006_05mar08/table_2.asp, (last visited 6 March
2010).
9 Dr. Parvaez Hassan and Azim Hazfar, Securing Environmental Rights Through Public Interest Litigation in
South Asia, 22 Va. Envtl. L.J. 215 (2004).
10 Reynato S. Puno, Chief Justice of the Supreme Court, Delivered on the occasion of Philippine Constitution
Day (Feb. 8, 2009).
11 Angelina P. Galang. The Philippine Environment in the Ecozoic Age: Principles of Environmental Science in
the Philippine Setting 33 (2009).
12 Philippine Constitution, Art. II, S. 16.
II. The National Environmental Policy and the Public Trust
Doctrine

On a policy level alone, the Philippines is said to have one of the worlds most
developed approaches to environmental protection and preservation. It is a
fundamental State policy under Section 16, Article II of the Constitution, which
provides that:

The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.

The Supreme Court interpreted this policy as an actionable right in the
landmark case of Oposa v. Factoran
13
The ponencia by Justice Davide characterized it,
viz:

While the right to a balanced and healthful ecology is to be found under the declaration
of Principles and State Policies and not under the Bill of Rights, it does not follow
that it is less important than any of the civil and political rights enumerated in the
latter. Such a right belongs to a different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation- the advancement of which
may even be said to predate all governments and constitutions. As a matter of fact,
these basic rights need not even be written in the Constitution for they are assumed to
exist from the inception of mankind.

Gatmaytan believes that this statement changed the way in which the Principles
and State Policies in the Constitution were viewed and invoked. According to him:

This statement is groundbreaking in that constitutional authorities in
the Philippines have always believed otherwise. The Principles and State
Policies of the Constitution are the political creed of the nation, which
sets out the fundamental obligations of the government. It is incumbent
upon the people to demand fulfillment of these governmental duties
through the exercise of the right of suffrage. These principles may aid
the courts in their determination of the validity of statutes or executive
acts in justiciable cases, but Joaquin Bernas maintains that they were not
intended to be self-executing principles ready for enforcement through
the courts. They are, rather, directives addressed to the executive and
legislative branches of the government. If there was a failure on their
part to heed the directives, the peoples remedy would be political and
not judicial.
14

13 G.R. No. 101083, 30 July 1993.
14 Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, citing Sinco (1962)
and Bernas (1988), The Georgetown International Environmental Law Review, Vol. 15:457, p. 480 (2003).
120 IBP JOURNAL
Beyond this express recognition in the Constitution, another principle which
rationalizes the right of the people to invoke the right to a healthy environment can
be found in the recognition of the public trust doctrine. In essence, this principle
recognizes the role of the State as a trustee of common resources and preserves for
the public its common use. Concomitant with this recognition is the imposition on
the State the responsibility to protect what is considered as a public right.
15
The
American case of Sierra Club v. Block involving wilderness is instructive:

Under the public trust doctrine, which is a common law concept, all
public lands of the nation are held in trust by the government by the
people for the people of the whole country, with the government having
the duty under the doctrine to protect and preserve the lands for the
publics common heritage.
16

The origin of this doctrine can be traced to Roman law concepts of common
property. Under Roman law, the air, the rivers, the sea and the sea shore were
incapable of private ownership.
17
Since then, the basic premise of the trust remains
fundamentally unchanged.
18
It serves two purposes: it mandates affirmative state
action for effective management of resources and empowers citizens to question
ineffective management of natural resources.
19

More than the embodiment in the Constitution of the right to a healthy
environment and the recognition that this right is enforceable in Philippine courts,
the countrys environmental framework is also hailed as being world class, formidable
and robust.
20
Often cited are the more recent legislations such as the Clean Air Act
(1999), the Ecological Solid Waste Management Act (2000), and the Clean Water
Act (2004), lauded for laying down a comprehensive framework for air quality,
solid waste and water quality management, respectively, in the place of piece-meal
legislation that previously governed these matters.
21

Despite this, the failure of the institutional and governance aspects of
environmental protection has thwarted the ultimate goal of these legislative efforts:
to provide effective solutions to environmental problems that have continually
plagued the country. La Via even commented that since [the time that Oposa] was
decided in 1994, the Philippines has lost more of its forest cover.
22

15 Bryan A. Garner, Blacks Law Dictionary (8
th
ed. 1999).
16 Sierra Club v. Block, 622 F. Supp. 842 (1985).
17 California State Lands Commission. The Public Trust Doctrine, available at http://www.slc.ca.gov/
policy_statements/public_trust/public_trust_doctrine.pdf (last visited 16 March 2010).
18 Id.
19 Id.
20 Antonio La Via, The Future of Environmental Law and Governance, 83 PHIL LJ 388, p. 415 (2008).
21 Id., p. 415.
22 Id., p. 389.
It is in light of this inadequacy that environmental practitioners have turned
to the judiciary and sought the adoption of a more practical and effective measure to
complement the enforcement of existing constitutional, policy and legislative
foundations. This, notwithstanding, the question remains: what authority does the
judiciary have in addressing these shortfalls?

III. The Role of the Judiciary

Traditionally, judicial power has been restricted to the courts authority to
settle actual controversies between real conflicting parties through the application
of a law.
23
However, since the celebrated case of Marbury v. Madison,
24
judicial power
has been reinvented to include the duty to strike down laws in opposition to the
Constitution. In the field of environmental law enforcement in the Philippines, judicial
review is considered the major tool by which the Supreme Court has affected both
its evolution and policy. La Via writes that the judiciary influences environmental
management through its power of judicial review. Specifically, courts:
adjudicate conf licts and violations that arise out of the
implementation and enforcement of laws dealing with the use of natural
resources and impact of human activities on public health and the
ecosystem, and
decide on the just apportionment of limited resources
25
.

However, beyond the power of the Court to settle actual controversies presented
before it, the Court likewise has the power to promulgate rules to guide future
conduct. Under Sec. 5(5) of Art. VIII of the Constitution:

The Supreme Court shall have the following powers:
xxx
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts
26

Yale Law Professor Peter H. Schuck, citing political scientist Richard E.
Neustadt, points out: the constitutional arrangements known as separation of
powers is really a messy system of separate institutions sharing power. The
boundary lines between what each of the branches may and may not do are all ill-
defined, except in the clearest cases, these lines are politically and legally contestable,
intensifying the competition over jurisdiction and power. xxx In such competitive
systems, the courts are often the joker in the constitutional deck.
27

23 Joaquin G. Bernas, S.J. The 1987 Constitution of the Republic of the Philippines: A Commentary 937 (2003).
24 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803).
25 La Via, Supra Note 20, p. 415.
26 Philippine Constitution, Art. VIII, S5(5).
27 Speech of Peter H. Schuck. Baldwin Professor of Law, Yale Law School, New Haven, CT, March 2004,
available at http://islandia.law.yale.edu (last visited 25 March 2010).
122 IBP JOURNAL
A. The Rule-making Power of the Supreme Court

As presented above, the Constitution confers upon the Supreme Court the
power to promulgate not only procedural rules in relation to the practice of law but
encompasses an expanded rulemaking power in the enforcement of constitutional
rights.
28
The rationale for this mandate was explained by Chief Justice Puno as a
reaction by the drafters of the 1987 Constitution in their reexamination of the balance
of powers between the three branches of government. He states:

The re-examination easily revealed under the then existing balance of power, the
Executive, thru the adept deployment of the commander-in-chief powers, can run
roughshod over our human rights. It further revealed that a supine legislature can
betray the human rights of the people by defaulting to enact appropriate laws, for there
is nothing you can do when Congress exercises its power to be powerless. It is for this
reason and more, that our Constitutional Commissioners, deemed it wise to strengthen
the powers of the Judiciary, to give it more muscular strength in dealing with the non-
use, mis-use, and abuse of authority in government.
29

It must be noted that the 1987 Constitution was drafted with a mission to
carry out the socio-economic agenda of the People Power revolution.
30
At a time
when political and social revolution were the foremost concerns, the authors of the
Constitution sought to end judicial submissiveness and created a more empowered
court, subject only to the limitation that this power cannot be exercised to alter
substantive rights.
31

Since the right to a balanced and healthful ecology has been established as an
actionable right, it then falls within the role of the courts to interpret this
constitutional provision and provide a procedure for its enforcement.

IV. Judicial Activism in India and the Doctrine of Separation of
Powers

An extension of the question on the authority of the judicial branch to
unilaterally promulgate the proposed rules involves the challenge to overcome the
objection that such rules violate the principles espoused under the doctrine of
separation of powers. These warnings become more real than apparent when
considered vis--vis the proactive stance taken by Indias courts in the enforcement
of its laws. The evolution of the environmental law in India and the courts role can
be summarized, viz:

28 Philippine Constitution, Supra Note 26.
29 Chief Justice Reynato S. Puno, View from the Mountaintop, Keynote Speech at the National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances Searching for Solutions, Manila Hotel, July 16, 2007.
30 Raul S. Pangalangan. Chief Justice Hilario G. Davide, Jr: A Study in Judicial Philosophy, Transformative Politics and
Judicial Activism. 80 PHIL LJ 538, p. 548 (2006).
31 Andres v. Cabrera, 127 SCRA 802 (1984).
Prior to the late 1970s, the Supreme Courts decisions were generally
characterized by judicial restraint. It avoided confronting Parliament on
issues of economic regulation and civil liberties, preferring to help establish
the legitimacy of the Central government. It was not until the emergency
period in the mid-1970s that the Court began to establish itself as a
powerful activist force. In 1975, in response to charges of election fraud
in the election of 1971, Prime Minister Indira Gandhi declared a state of
emergency and suspended civil rights across the country to maintain control
over her position. She forced a number of economic reforms through
Parliament, as well as some more controversial legislation, including a
constitutional amendment that confirmed her election in 1971. Stepping
forward in such an uncertain era as a protector of the people, the Court
intervened in the case of Indira Gandhi v. Raf Narain and declared the
amendment unconstitutional.
In the twenty-five years following the emergency period, the Supreme
Court has continued to reinvent itself. Taking on the role of the last
resort of the oppressed and bewildered, the Court initiated a period of
judicial activism in a wide range of legal areas. One of the most important
judicial reforms came with the establishment of public interest litigation
(PIL), which enables any citizen to bypass ordinary legal proceedings and
appeal directly to the Supreme Court to protect his/her fundamental
rights. In the 1984 case of Bandua Mukti Morcha v. Union of India, Justice
P. N. Bhagwati stated that if a person was physically or economically unable
to approach the Court, he/she may move the Court even by just writing
a letter, because the legal system would otherwise be inaccessible to
some of its citizens.
32

In the Bandhua case, the Court decided to abandon the laissez-faire approach in
the judicial process particularly where it involves a question of enforcement of
fundamental rights and forge new tools to make fundamental rights meaningful
for the large masses of people. In this latter ruling, two major developments were
declared by the Court. First, that the right to a healthy environment is a fundamental
right and that in enforcing this right, the Courts liberalized the rule on standing.
33

Beyond these pronouncements, the Supreme Court of India is heavily criticized
for its reaction in environmental litigation when it compensated for what the Court
perceived as inadequacies in legislation by expanding its own rules and by creating
its own system of environmental protection....
34
The strong stance taken by the
Indian Supreme Court is evident in the 1998 Delhi Pollution case wherein the Court,
embracing its activist role, issued a controversial order suo moto mandating the
32 J. Mijin Char, A Critical Examination of the Environmental Jurisprudence of the Courts of India, 10 Alb. L.
Envtl. Outlook J. 197 (2005).
33 Id.
34 Id.
124 IBP JOURNAL
conversion of the entire Delhi fleet of diesel-powered buses to compressed natural
gas (CNG)
35
The Courts ruling in this case was met with strong opposition and was
criticized as a usurpation of the powers granted to other enforcement agencies.
36
S.P. Sathe, the director of the Institute of Advanced Legal Studies in Pune, India,
commented that the Courts action in this case was beyond (Judicial) activism but
rather . . . is excessivism as the court undertook responsibilities normally
discharged by other co-ordinate organs of the government.
37

This same objection is presented with regard to the proposed judicial reform.
Since the environmental writ will be the product of the Supreme Courts initiative,
there is a danger that judicial power over environmental cases may be extended
beyond the limits of the Courts authority as embodied in the Constitution. It is
feared that this unwarranted broadening of the powers of the Court will violate the
doctrine of separation of powers and concomitantly, the system of checks and balances
laid down to prevent arbitrary State action. Further, the dissenting opinion of a US
Supreme Court Justice in the leading environmental case Sierra v. Morton is still
relevant:

Ours is not a government by the Judiciary. It is a government of three
branches, each of which was intended to have broad and effective powers
subject to checks and balances. In litigable cases, the courts have great
authority. But the founders also intended that the Congress should have
wide powers, and that the Executive branch should have wide powers.
All these offices have great responsibilities. They are not less sworn
than are the members of the Court to uphold the Constitution of the
United States.
38

The invocation of the doctrine of separation of powers and the charge of judicial
activism, however, fails to justify the abandonment of the proposed judicial reform.
Besides the fact that it has been established that it is within the Courts rule-making
power to promulgate such rules, the opposition loses force when viewed in light of
the history of two writs adopted and currently enforced by the Court the Writs of
Amparo and Habeas Data. Particularly, in the case of the Writ of Amparo, the
same objections were raised and struck down as being misplaced and at best,
inadequate.

35 S.C. Writ Pet. (Civil), M.C. Mehta v. Union of India (July 28, 1998) (No.13029/1985), available at http://
www.elaw.org/resources/text.asp?ID=1051 [hereinafter Delhi Pollution Case 1998].
36 Armin Rosencranz and Michael Jackson, The Delhi Pollution Case: The Supreme Court of India and the
Limits of Judicial Power, 28 Colum. J. Envtl. L. 223 (2003).
37 S.P. Sathe, Judicial Activism: The Indian Experience, Wash. U. J.L. & Poly 29, 40 (2001).
38 405 U.S. 727 (1972).
V. Judicial Activism and The Writ of Amparo

When the Rule on the Writ of Amparo took effect last October 24, 2007,
39
quick opposition emerged when some have decried that the Supreme Court has
become an activist court, contrary to its traditional mandate of passivity.
40
This
objection, however, was quickly muted because of the majority consensus that the
current rule to protect the right of the people to life, liberty and security, in place at
that time, was viewed as inadequate, viz:

Presently, the writ of habeas corpus is unable to provide adequate
protection to the right to life, liberty and security of the person since
denial of custody by the respondent would usually lead to the dismissal
of the petition. Moreover, the petition for habeas corpus is not the
appropriate remedy where the person is arrested by the police who claimed
to have released him but still continued to be missing.
41

Pangalangan even painted judicial activism in a positive light when he described
it as a different matter than ordinary activism identified with progressive social
causes. He says:

Judicial activism, rather, refers to a judges readiness to use his court,
his judicial decisions, or to use, in a more precise legal term, the power of
judicial review, to advance substantive social or political causes.
42

Thus, the judicial attempt to fill the gaps in the procedural remedies to protect
these constitutional rights was preferred and supported.

The same situation presently exists in the development of the Rule on the
Writ of Gaia. Since there are recognized procedural lapses in the enforcement of
environmental laws, the more active role that the judiciary has taken should not be
a deterrent to the adoption of these rules.

As regards the invocation of the doctrine of separation of powers, the objections
resonate the often-quoted fear that the participation of the Supreme Court will
dwarf the political capacity of the people.
43
Since the judiciary is an independent
branch, unelected through popular will, the judiciarys decision was viewed as an
unaccountable judgment that is more prone to abuse than the discretion exercised
by the other branches of government. Therefore, the objection goes, allowing the
39 Supreme Court, A.M. No. 07-9-12-SC.
40 Felipe Enrique M. Gorzon Jr. and Theoben Jerdan C. Orosa. Watching the Watchers: A Look Into the Drafting of the
Writ of Amparo 82 PHIL LJ 8 p. 11 (2008).
41 Id.
42 Pangalangan, Supra Note 30.
43 Flast v. Cohen, 392 U.S. 83, 120 (1968) (Douglas, J., concurring opinion, quoting J. Thayer, John Marshall 106,
107 (1901).
126 IBP JOURNAL
Courts to legislate will be an additional and possibly an unrestricted avenue for
possible abuse.

However, it must be noted that an important conception about both the
principles of separation of powers and checks and balances is that while the three
branches of government are considered as independent from each other, the
delimitation of their powers are not absolutely severed from each. Instead, they are
interdependent and, at times, there may be a certain degree of blending of these
allocated powers and functions.
44
Considering that all three branches work towards
the same ends, it is impracticable, if not impossible, to maintain complete separation
of each of the three branches. In the words of Justice Laurel, The classical separation
of governmental powers, whether viewed in the light of political philosophy of
Aristotle, Locke or Montesquieu, or of the postulations of Mabini, Madison or
Jefferson, is a relative theory of government. There is more truism and actuality in
interdependence than in independence and separation of powers.
45

VI. The Nature and Functions of Writs

In recent years, the Court has actively utilized its rule-making power through
its adoption of the rules on two writs complementary to the writ of habeas corpus.
Aside from the Writ of Amparo, which has already been described above, the Court
also adopted the Rules on the Writ of Habeas Data. While these two writs were
conceived to address extrajudicial and forced disappearances, the latter differs as it
primarily addresses the concern of access to information, a privilege which the Writ
of Gaia likewise seeks to provide. Before delving into the substantive content of the
proposed writ, however, an overview discussion on nature and functions of writs is
beneficial.

In general, a writ is defined as a courts written order, in the name of a state
or other competent legal authority, commanding the addressee to do or refrain from
doing some specified act.
46
It has a long history, which can be traced to its formal
origin, viz:

to the Anglo-Saxon formulae by which the king used to communicate
his pleasure to persons and courts. The Anglo-Norman writs, which we
meet with after the Conquest, are substantially the Anglo-Saxon writs
turned into Latin. But what is new is the much greater use made of them,
owing to the increase of royal power which came with the Conquest.
47

44 Vincente G. Sinco, Philippine Political Law: Principles and Concepts, 128 (1962).
45 Cited in. Reynaldo B. Aralar, Separation of Powers and Impeachment. 13 (2004).
46 Garner, Supra Note 15.
47 Id., citing W.S. Holdsworth, Sources and Literature of English Law 20 (1925).
One of the writs commonly seen as part of the common law of England is the
Writ of Ne Exeat Regno. This writ is issued by the king when he wants to prohibit
any part of his subjects from going into any parts without license. By virtue of this
writ, subjects owed an obligation to fight for the king and to ensure [that] they were
available The purpose behind the issuance of this writ is to protect the interests
of the State and to restrain departures of individuals owing taxes to the government.
At present, in Pennsylvania and Illinois, this writ has evolved to contemplate cases
setting equitable bail and restrain debtors from leaving the jurisdiction, at the suit
of the private creditors.
48

Other examples of writs, which originated from the English government include:
the Writ of Scire Facias, which was issued in the name of the king to show cause why
patents of land should not be repealed or revoked; and the Writ of Procedendo Ad
Justicium, which is issued when judges of any subordinate court cause delay to the
parties, by not rendering judgment when they ought to do so.
49

Aside from these, this jurisdiction also has three major writs, which are relevant
certiorari, mandamus and injunction. Although these three are different in their
nature and functions, (i.e., certiorari seeks to annul, mandamus seeks to mandate
and injunction seeks to prevent) common to these writs is the lack of speedy, adequate,
available remedy at law. They may be invoked only in cases where great and
irreparable injury to the plaintiff is sought to be avoided. Similar to these remedies,
the proposed Writ of Gaia seeks to address violations of [environmental] laws
involving such magnitude as to prejudice public welfare, and for which the delay of
a protracted trial must be urgently avoided.

VII. The Writ of Gaia

Unlike the Writ of Habeas Corpus, which is an English innovation, and the
Writ of Amparo, which was first invoked in Latin America, the Writ of Gaia will be
a purely Filipino invention. Chief Justice Puno himself confirmed this at a forum,
saying that we are proud to announce to the world that we have a writ that will
protect our right to a balanced and healthy ecology which does not come from the
West or Latin America. It will come from the Philippines itself.
50
Some of the salient
features and the needs that these proposals seek to address are discussed below.

A. The Court-supervised Environmental Impact Statement

The Writ of Gaia seeks to take advantage of the moribund Environmental
Impact Statement (EIS) process currently in place in the country. Although
48 Id.
49 Id.
50 Edmer Panesa, SC to Introduce Writ of Kalikasan, available at http://www.mb.com.ph/articles/241225/sc-introduce-
writ-kalikasan, 31 January 2010, (last visited 2 February 2010).
128 IBP JOURNAL
promulgated in the 1970s, the EIS System remains underutilized because of several
weaknesses found in its implementation. Gatmaytan highlights these as follows:

First, there is a lack of capacity to fully appreciate the EIS especially in
remote areas because of the lack of sufficient expertise to carry out the
responsibilities of agencies and LGUs contained in the laws.

Second, there is a lack of documentation available to prepare a
comprehensive assessment especially in identifying environmentally
critical areas.

Third, there are rampant violations of the law due to the insignificant
penalties imposed under the system.

Fourth, there is DENR reluctance to deny environmental compliance
certificates for investment projects because of the need to accelerate the flow of
foreign investment into the Philippines.

Lastly is the presence of badly executed public participation and public
consultations, which have created negative impacts on stakeholders especially the
local communities adversely affected by the proposed project. Often, they are not
aware of the provisions on public participation and social acceptability of projects
under the systems implementing rules and regulations.
51

The Rules on the Writ of Gaia seek to remedy these infirmities by mandating
a court-supervised EIS to be conducted, which will command the responsible agencies
to prepare an EIS strictly in accordance with the comprehensive requirements of
the law. This EIS will, then, be evaluated by the court having jurisdiction over the
petition to ensure that compliance thereto was not haphazardly made. Evaluation
also ensures that the requirements of public participation and social acceptability of
the project are met. The mandatory nature of this order seeks to remedy the hesitation
of the national agencies to make a detailed statement, despite the political policy
towards prioritizing investments and development rather than environmental
concerns.

In the end, the availability of this measure hopes to echo the US Supreme
Courts ruling on the case of Calvert Cliffs v. US Atomic Energy,
52
which requires that
environmental values be considered together with other governmental concerns in
assessing whether or not a project ought to continue and that considerations of
administrative difficulty, delay or economic cost will not suffice to strip the section
of its fundamental importance.

51 Gatmaytan, Supra Note14.
52 449 F.2d 1109, 149 U.S. App.D.C. 33 (1971).
Moreover, the court-supervised EIS will remedy the problem of inadequate
access to vital environmental information necessary to be considered in the decision-
making process. This will be achieved by requiring the respondent (both private and
government) to provide such information to the responsible agency tasked to make
the detailed EIS. In addition, provisions allowing for the court to order the production
of documents vital to the petition as well as the provisions permitting the petitioner
to inspect the premises and to conduct tests thereon, will also allow the responsible
agency greater access to accurate information. This could also be used as a means to
verify the information submitted to the court and the responsible national agencies
by the respondent.

Another weakness that this measure seeks to address is the lack of active
public participation. This is especially important in the case of the local communities
that are directly affected by the project since they have the greatest interests to
preserve that no significant and irreparable damage or risk be done to the
environment. Thus, in the Writ of Gaia, public participation will be mandated by the
court. It will even require comments made in the draft of the EIS to be attached to
the final EIS. Through this provision, it is hoped that public participation will not be
viewed merely as an inconvenient procedural requirement, but rather as a meaningful
means to include the information gained from the publics sentiment into the hands
of the countrys decision-makers.

B. The Environmental Protection Order and the Writ of Continuing
Mandamus

SC Administrative Order No. 23-2008, promulgated on 23 January 2008,
designated 117 first and second level courts to serve as green courts. These green
courts were given jurisdiction to hear, try and decide cases involving violations of
environmental laws within their territorial jurisdictions.

The Court followed this up with the Draft Rule of Procedure for Environmental
Cases (Draft Rules), proposed in 2009. These proposed rules govern the procedure
for civil, criminal and special civil actions before the designated green courts.
53
These
rules are instructive as to their possible inclusion in the Rules on the Writ of Gaia.

The Draft Rules provide for an Environmental Protection Order (EPO), defined
as a written order issued by the court directing or enjoining any government agency
or person to undertake activities aimed at protecting, preserving, rehabilitating or
restoring the environment during the pendency of the case involving a violation of
an environmental law.
54
This EPO may be temporary, as is provided under Rule 2, Section 3 of the
Draft Rules, viz:
53 Draft Rule of Procedure for Environmental Cases, Rule 1, Section 3 (2009).
54 Draft Rule of Procedure for Environmental Cases, Rule 1, Section 6 (2009).
130 IBP JOURNAL
SEC. 3. Provisional remedies. If it shall appear from the verified
complaint and its attachments that there is a prima facie violation of any
environmental law, the court may issue ex parte a temporary EPO to be
effective only for a period of twenty (20) days from date of issuance
thereof. Within the said 20-day period, the court must order said party or
person to file his or her comment and appear in a hearing on the prayer
for a writ of preliminary EPO. The scheduled hearing shall be summary
in nature. The court at its discretion, may ask clarificatory questions to
the parties and their witnesses, who shall be placed under oath. The court
shall immediately resolve the application for the prayer for a writ of
preliminary EPO within the 20-day period based on the attachments to
the complaint and statements or admissions of the parties during the
hearing.

A temporary EPO may be converted into one for continuing mandamus, in
recognition perhaps, of the ruling in Metropolitan Manila Development Authority (MMDA),
et al v. Concerned Residents of Manila Bay
55
Rule 5 Section 2 provides that:

SEC. 2. Continuing mandamus. The court may issue a writ of continuing
mandamus directing the performance of a series of acts and is effective
for an unlimited period of time.

After judgment, the court may convert the temporary EPO to a writ of
continuing mandamus. The court shall require the violator to submit quarterly
periodic reports detailing the progress of the execution of the judgment. The court
may also require the concerned government agency to monitor such progress.

The writ shall terminate upon a sufficient showing that the order has been
implemented to the satisfaction of the court in accordance with Section 14, Rule 39
of the Rules of Court.

These provisional remedies may be availed of insofar as they may be applicable
in criminal cases, in accordance with Rule 10 Section 1.

The Courts decision in MMDA v. Concerned Residents of Manila Bay, and
consequently, the provision for continuing mandamus in the Draft Rules are important
because they address a pertinent reality in environmental cases. It is difficult to
identify a particular point in time when an environmental problem begins to become
one. When the seriousness of the matter comes to light, the damage has usually
already been done.

Thus, if the Writ of Gaia is to be the mechanism by which continuing mandamus
can be invoked, it cannot only be a way to remedy what is already a prima facie
violation. There should also be a way by which the protection and preservation can
55 G.R. No. 171947-48, 18 December 2008.
be insured pro-actively and sought at the first instance, applying the precautionary
principle as will be discussed in the subsequent sections.

C. Delay in the Resolution of Environmental Cases

Despite the designation of the Supreme Court of first and second level courts
to serve as green courts, during a national conference held to discuss the
environmental issues faced by the countrys courts, it was pointed out that more
than 3,000 environmental cases remained unresolved nationwide.
56

Data from the environmental group Haribon Foundation as of January 2008
puts the exact number of pending environmental cases at 3,120, the hot spots being
the Bicol region, Western Visayas and Region 4-B, composed of the provinces of
Mindoro, Marinduque, Romblon and Palawan. They note that the filing of
environmental cases has increased tenfold from 1996 to 2008. Of the total number
of cases, 109 were filed before 1998, meaning that 3.5% of these have remained
undecided after a decade. The numbers may not even be completely reflective, as
Haribon has gleaned from statistics provided by the organization Alyansa Tigil Mina
that there are more mining cases pending than what has been documented by the
Philippine Judicial Academy.
57

The delay in the proper resolution of these cases makes the adoption of the
Writ of Gaia imperative considering that the unimpeded damage done to the
environment may merely result in a hollow victory for these cases.

D. Locus Standi Threshold and Access to Justice

In his speech, Chief Justice Puno also posed the question of how further
down should the courts lower the threshold on locus standi? This question was
propounded in the context of the pending case filed by the resident sea mammals
of the Tanon Strait, against the Japan Petroleum Exploration Company, Ltd., which
seeks to stop further offshore exploration in the interest of protecting the
petitioners habitat.
58

In this regard, the Chief Justice expressed that it was necessary that any rule
formulated must strike a proper balance between the need to encourage citizens
suits and the danger that unregulated citizens suits may bring about nuisance cases.
59

56 Bordadora, Norman, SC Eyes New Writ to Speed Up Environmental Cases, 31 January 2010, available at http://
newsinfo.inquirer.net/ breakingnews/nation/view/20100131-250512/SC-eyes-new-writ-to-speed-up-environmental-
cases (last visited 10 March 2010).
57 Marifel Moyano, Green Benches, 10 January 2008, available at http://www.haribon.org.ph/Topic/32/Green-Benches,
(last visited 13 February 2010.
58 Reynato S. Puno, Chief Justice of the Supreme Court. Opening Remarks at the Forum on Environmental Justice:
Upholding the Right to a Balanced and Healthful Ecology held on April 16-17 2009, at the University of the
Cordilleras, Baguio City.
59 Id.
132 IBP JOURNAL
Bonine writes that standing to sue is the first step in access to justice.
60
This
is even more so in the field of environmental and other areas of public interest law,
where citizens suits for enforcement make valuable and groundbreaking
contributions. In recognition of this, many countries have liberalized their own rules
on standing to sue, providing for these either in their Constitutions or in judicial
decisions.

The Philippine rules on standing to sue are merely procedural, and have been
relaxed in cases of paramount or transcendental importance. Specifically, in Integrated
Bar of the Philippines v. Zamora,
61
the Supreme Court en banc stated that:

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. 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. Thus, when the issues raised
are of paramount importance to the public, the Court may brush aside
technicalities of procedure. In this case, the IBP has advanced
constitutional issues which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents. (xxx) the legal
controversy raised in the petition almost certainly will not go away. It
therefore behooves the Court to relax the rules on standing and resolve
the issue now, rather than later.

What constitutes a question of transcendental importance is not categorically
defined. However, Justice Florentino P. Feliciano has qualified this by indicating the
following determinants: (1) the character of the funds of other assets involved in
the case; (2) the presence of a clear case of disregard of a constitutional or statutory
prohibition by public respondent agency or instrumentality of the government; and
(3) the lack of any other party with a more direct and specific interest in raising the
questions being raised.
62

In 2007, Justice Consuelo Ynares-Santiago presented three options to address
the legal issue of standing to sue in environmental cases. These were:

First, complete liberalization of the rules on standing for environmental cases;

Second, selective liberalization of rules, such as waiver of standing in
cases of transcendental importance; and

60 John E. Bonine, Standing to Sue: The First Step in Access to Justice (School of Law, University of Oregon, 1999), in
http://www.law.mercer.edu.elaw/standingtalk.html (last visited 6 March 2010).
61 G.R. No. 141284, 15 August 2000.
62 cited in Jumamil v. Caf, et al, G.R. No. 144570, 21 September 2005.
Last, adoption of the rule that environmental cases are imbued with public
interest, where rules on standing and cause of action may be interpreted
liberally.
63

Justice Ynares-Santiagos first option can be likened to the open standing
provisions used by the Land and Environmental Courts in New South Wales,
Australia. Under these, any person may approach the court alleging a breach or
threatened breach of environmental law.
64
Their application has promoted public
interest litigation and has encouraged the reappraisal of the appropriateness of
many of the established practices and procedures of the courts in determining
litigation, such as the rules on costs.

The objection that such a liberal approach to standing presents a danger that
unregulated citizens suits may bring about nuisance cases was not confirmed by
the Australian experience. Justice Stein noted that the open standing provisions
never exceeded 20% of registrations for civil enforcement and judicial review
brought by individual citizens and NGOs in any year. If anything, the availability of
open standing provisions highlighted the significant procedural hurdles inhibiting
access to the court in environmental cases, such as the high of costs of litigation.
65

In the Philippines, While many NGOs, POs, other community groups and
environmental law practicioners have expressed [interest] in or are already currently
engaged in environmental law enforcement, their inability to prosecute criminal
actions constitute barriers to effective enforcement. Save for the provisions of the
Clean Air Act and Ecological Solid Waste Management Act on citizens suits, there
is no legal recognition of citizens right to bring actions for violations of environmental
laws.
66

The proposed Writ of Gaia seeks to address this and may be used as an avenue
through which greater access to courts is provided by having more liberalized rule
on standing.

Accompanying the liberalized threshold on standing and as part of efforts to
propel greater access to justice, the Writ of Gaia will also embody the principles
pronounced in the Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters (otherwise known
as the Aarhus Convention). The same principles enumerated therein are reiterated
in Principle 10 of the Rio Declaration on Environment and Development, which
calls for public access at the national level to environmental information; access to
public participation in the decision-making; and public access to judicial and
administrative proceedings in environmental matters.
67

63 Ynares-Santiago (2007) quoted in La Via, Supra Note 20, p. 749-50.
64 Paul Stein, Major Issues Confronting the Judiciary in the Adjudication of Cases in Environment and Development, COURT
SYSTEMS J, Special Edition, p. 216 (1999).
65 Id., p. 271-72.
66 La Via, Supra Note 20, p.414.
67 World Resources Institute, World Resources 2002-2004: Decisions for the Earth, Balance, Voice and Power, Washington
DC (2003).
134 IBP JOURNAL
Again, it is the court-supervised EIS System of the Writ of Gaia that will act as
the main mechanism that will give life to these declarations of principles.

In the Philippines, While the legal framework for public participation is already
strong, one glaring flaw is the absence of an effective mechanism to enforce
compliance with the requirements set by law.
68
Therefore, it is proposed that the
Writ of Gaia be employed in order to act as an effective deterrent and a speedy
remedy against non-compliance with public participation requirements.

E. Natural Resource Damage Liability

Another feature, which the Writ of Gaia intends to advance is the inclusion in
its provisions of the so-called Natural Resource Damage (NRD) Liability.

Natural Resource Damage (NRD) Liability started as a directive of the European
Union to prevent and remedy environmental damage by establishing a framework
on environmental liability based on the polluter pays principle in international
environmental law.
69
Essentially, the intent of the NRD provisions are to restore
damaged resources to their original condition and forces the parties responsible for
the contamination to clean it up at their own cost.
70
What started as a regional
European custom, this principle is now increasingly accepted by the international
community as it is now embodied under Principle 16 of the Rio Declaration on
Environment and Development.

NRD costs contemplate two components - primary and compensatory. These
costs include the cost to restore premises near site including remediation (primary)
and the cost for value of lost use restoration activity including acquisition of
equivalent.
71
Although imposing financial liability, however, the nature of the action
is remedial in nature. The goal of its imposition is not punitive but merely that of
restoration. The damages sought to be compensated include the cost of replacing,
restoring, or acquiring the equivalent of the environmental resource.
72

The same principle may be adopted in enforcing the Writ of Gaia. As a
consequence of finding the respondent responsible for the environmental harm, in
enforcing the writ the court may likewise enforce such measures aimed at protecting,
preserving, rehabilitating, restoring or compensating for the damage or risk to the
environment. Because of the high burden of costs associated with correcting
68 La Via, Supra Note 20.
69 Hannes Descamps, DENR Belgium Legal Counsel, Addressed at the International Workshop on Environmental
Damage by Black Seas University of Brest: Natural Resource Damage Assessment under the EC Directive on
Environmental Liability (May 18-19, 2006).
70 Michael R. Hope, Natural Resource Damage Litigation under the Comprehensive Environmental Response, Compensation,
and Liability Act, 14 Harv. Envtl. L. Rev. 189 (1990).
71 Id.
72 Sharon Shutler, NOAA Office of General Counsel for Natural Resources. Natural Resource Damages, available
at http://coralreef.gov/injury/injury_helton_fall06.pdf (last visited on 16 March 2010).
environmental damage, the adoption of the NRD in the rules serves a dual purpose:
first, it imposes the costs on the perpetrator themselves; and second, it alleviates
societal costs associated with the continuous depletion of natural resources.

F. Burden of Proof and the Precautionary Principle

Chief Justice Puno likewise noted that proving damages in environmental cases
was often difficult. This was because these were often based on statistics and
probabilities and as such could not adequately predict future impacts and effects. In
this regard, he suggested an exploration of the adoption of the precautionary principle.
Tolentino traces the origin of this principle in the mid-1980s as part of the
domestic laws of the then West Germany. He goes on to state that since then, it
has been incorporated in many international environmental treaties since 1983
and cites that the 1992 Bergen Ministerial Declaration on Sustainable Development
in the ECE Region was the first international instrument to consider the
Precautionary Principle as part of customary international law, and therefore binding
on all signatory states
73

The often-cited statement of this principle is found in the Rio Declaration of
1992. Principle 15 of the Declaration reads:

In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are
threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measures to
prevent environmental degradation.

The precautionary principle was applied by the Indian High Court in the case
of Andhra Pradesh Pollution Control Board vs. MV Nayudu.
74
In justifying the principle,
the Judges referred to Charmian Barton, from the Harvard Law Review, as follows:

There is nothing to prevent decision makers from assessing the record
and concluding there is inadequate information on which to reach a
determination. If it is not possible to make a decision with some
confidence, then it makes sense to err on the side of caution and prevent
activities that may cause serious or irreversible harm. An informed decision
can be made at a later stage when additional data is available or resources
permit further research. To ensure that greater caution is taken in
environmental management, implementation of the principle through
Judicial and legislative means is necessary.
75

73 Francis N. Tolentino, The Precautionary Principle: Closing the Gap between International Trade Law and
Biotechnology (2009) (unpublished, Tulane Law School) (on file with author).
74 Appeal (civil) 368-371 of 1999 Appeal (civil) 372 of 1999 Appeal (civil) 373 of 1999.
75 Id.
136 IBP JOURNAL
The adoption of this principle likewise shifted the burden of proof required
for environmental cases. In these instances, a reversal was warranted, such that it is
necessary that the party attempting to preserve the status quo by maintaining a less-
polluted state should not carry the burden of proof and the party, who wants to alter
it, must bear this burden. The risk of harm to the environment or human health
was to be determined according to a reasonable persons test. Stated otherwise,

The precautionary principle suggests that where there is an identifiable risk of serious
or irreversible harm, including, for example, extinction of species, widespread toxic
pollution in major threats to essential ecological processes, it may be appropriate to
place the burden of proof on the person or entity proposing the activity that is potentially
harmful to the environment
76
.

The Philippine Supreme Court can be said to have taken a similar approach in
Hernandez v. National Power Corporation (NAPOCOR).
77
The Court issued an Injunction
against NAPOCORs installation of transmission lines which would pass through
the area where their homes were located. Studies showed that close proximity to the
electromagnetic fields generated by these lines increased the incidence of illnesses
such as cancer and leukemia. Justifying its issuance, the First Division, through
Justice Chico-Nazario ratiocinated that:

True, the issue of whether or not the transmission lines are safe is essentially evidentiary
in nature, and pertains to the very merits of the action below. In fact, petitioners
recognize that the conclusiveness of their life, health and safety concerns still needs to
be proved in the main case below and they are prepared to do so especially in the light
of some studies cited by respondent that yield contrary results in a disputed subject.
Despite the parties conflicting results of studies made on the issue, the possibility that
the exposure to electromagnetic radiation causes cancer and other disorders is still,
indeed, within the realm of scientific scale of probability.
(xxx)
Lest we be misconstrued, this decision does not undermine the purpose of the NAPOCOR
project which is aimed towards the common good of the people. But, is the promotion
of the general welfare at loggerheads with the preservation of the rule of law? We
submit that it is not.

In the present case, the far-reaching irreversible effects to human safety should be the
primordial concerns over presumed economic benefits per se as alleged by the NAPOCOR.

Consistent with the ruling in Hernandez, Gatmaytan has made suggestions with
regard to the quantum of evidence needed for the issuance of injunctive relief. He
has proposed that the quantum of evidence be reduced to probable cause. As such,
the applicants would only have to show that:

76 Id.
77 G.R. No. 145328, 23 March 2006.
the acts they are attempting to enjoin would probably cause the damage
they are attempting to prevent. The danger to the environment should
be the primary consideration in these cases. To require a higher standard
would risk the possibility that the environment would be irreversibly
damaged while the courts attempt to resolve the merits of the case.
78

In addition, Gatmaytan also recommends reducing the burden of proof
required to determine liability for environmental damage. The need to establish at
least a preponderance of evidence may be discouraging to potential litigants, so he
proposed lowering the burden of proof for civil liability to substantial evidence.
Substantial evidence, as defined in Rule 133 Section 5 of the Revised Rules of Court,
the quantum of evidence required for proceedings before administrative or quasi-
judicial bodies, is the amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion, and as such is the least demanding form
in the hierarchy of evidence.
79

Abano likewise makes suggestions to prove causation in latent disease cases,
and in other actions that may be termed environmental torts. He acknowledges
that establishing the connection between the act or omission and the injury caused is
difficult, given the long-term effects of toxic substances and lack of definitive medical
conclusions. In this regard, he suggests that resort be made to 3 methods:
epidemiological studies, expert testimony and the strict liability principle.
80

Epidemiological data establishes the fact that the substances are capable of
producing the injuries suffered and as such measures the probability that the injuries
were caused by the substances in question. The evidence offers at least a
circumstantial evidence of proximate cause.
81
This data is then supported by expert
testimony in accordance with Rule 130 Section 49 of the Revised Rules of Evidence.

The strict liability principle imposes liability whether or not there is fault,
negligence, malice or intent. This principle is already existent in the New Civil
Code and Consumer Act of the Philippines (R.A. 7394) with regard to product defects
and liabilities.
82
Although Abanos suggestions are anchored on examples from toxic tort
litigation, and as such refer to issues such as exposure to toxic waste that has been
improperly disposed of, it is not difficult to apply his recommendations in other
cases wherein human health and well-being is an indicator for violations of
environmental laws and standards. These instances include the harmful impacts of
78 Gatmaytan, Supra Note 14, p. 19-20.
79 Id.
80 Vivencio F. Abano, Environmental Tort: Cause of Action, Proof and Causation, PHIL JA J, Vol. 6 No. 20, p. 185
(2004).
81 Id.
82 Abano, Supra Note 76, p. 188.
138 IBP JOURNAL
the chemicals generated by Acid Mine Drainage and mine tailings on the marine and
river resources which local communities consume (as has been the case of Rapu-
Rapu Island in Albay and on the island province of Marinduque) and the hazards
posed by large scale energy projects (i.e., the proposed coal-fired power plant along
the Saranggani Bay).

CONCLUSION

The promise of a Writ of Gaia and the adoption of the doctrine of continuing
mandamus in the Philippine legal arena represent efforts to turn soft law into hard.
83
The principles in the statutes are no longer mere aspirations or pretty words, and
the courts are no longer limited to what has generally perceived as obiter in Oposa.
Environmental law is becoming substantive law, such that it now warrants rules that
are all its own.

Justice Ynares-Santiago explained this as follows:

Environmental cases have features that differentiate them from ordinary
civil and criminal cases. Treating them differently does not mean giving
special favors or giving bias to environmental causes. Instead, it is
recognition that the nature of environmental cases makes it difficult for
injured parties to find redress. The special rules only try to correct the
situation to balance the playing field.
84

The Supreme Court of India once said of public interest litigation:
In public interest litigation, unlike traditional dispute resolution
mechanisms, there is no determination or adjudication of individual rights.
While in the ordinary conventional adjudications the party structure is
merely bi-polar and the controversy pertains to the determination of the
legal consequences of past events and the remedy is essentially linked to
and limited by the logic of the array of the parties, in a public
interest action, the proceedings cut across these traditional forms and
inhibitions.
85

It is generally agreed that environmental litigation involves public law, even as
it may seem to resolve private concerns. Natural resources cannot easily be replaced.
The loss is not only to certain plant and animal life, but perhaps more importantly,
to the capacity of the now polluted segments of the environment to regenerate and
83 Stein, Supra Note 64.
84 Ynares-Santiago (2007) quoted in La Via, Supra Note 20.
85 Sheela Barse v. Union of India 3 SCC 596 (1986) cited in Bonine, Supra Note 60.
86 Commonwealth of Puerto Rico v. The SS Zoe Colocotroni, 682 F.2d 652 (1
st
Cir. 1980).
sustain life for some time in the future.
86
This is what makes environmental judicial
decisions all the more important. They are bigger than the now, so to speak. The
only difference is that the environmental dilemma confronting us is not part of
cinemas world of make-believe.

140 IBP JOURNAL
Revisiting the Philippine
Educational System
for Everyones Reflection*
Rustico T. De Belen**
Education is everybodys business. The educational system in this country is
presented and analyzed in this paper in the context of history, law and philosophy
across Philippine history. It is viewed from a developmental perspective. This paper
is also premised on the notion that the culture base of Philippine education is not
simply the blending of Spanish and American civilizations that account for the
practical and ruggedly individualistic character of the people (Elevazo and Elevazo,
1995: 2). It has also its indigenous underpinnings that Filipinos, particularly our
leaders, should understand so that they can be truly proud of themselves and use it
as a platform to change society. Understanding the culture base of Philippine education
is vital to the realization of Filipino identity and the development of a responsible,
productive and patriotic citizenry through education. Education is indeed an important
aspect of public governance. It is the key to a progressive and upright society.
Our system of education did not spring from a vacuum. It has historical, legal
and philosophical roots. From a historical standpoint, the Philippine educational
system has been regarded as a hybrid, reflecting the countrys cultural and colonial
history. Education laws and policies that have been enacted and implemented
throughout history can attest to this. As products of the particular historical, socio-
economic, political and cultural conditions prevailing at the time of their passage,
they have been made to serve or address the challenges and prospects faced by the
country and society at those times (De Belen, 2003: 2). A simple perusal of the
language of these laws and policies reveals the legal foundation of education. However,
one must pierce into their legal texts and analyze the dominant political interests,
policies, behavior and attitudes of both the rulers (the government) and the ruled
(the people) to understand their historical and philosophical foundations (ibid., p. 5).
* Some portions of this article were lifted from the book Educational Laws and Jurisprudence in the Philippines
by Rustico T. De Belen to be published this year.
** BA (Political Science), UP Diliman; BSN, St. Dominic Savio College; MNSA, National Defense College of the
Philippines; LLM, San Beda Graduate School of Law, and PhD (Peace and Security Administration), Bicol
University Camp Crame Peace Program. He is currently the Deputy Director of the Supreme Court Mandatory
Continuing Legal Education Office and was formerly the Assistant Secretary and OIC-Undersecretary for
Policy Planning and Legal Affairs of the Department of Agrarian Reform (DAR). He is the author of several
books: Education Laws and Jurisprudence (2010), Philippine Laws on Food, Drugs and Cosmetics (2010),
Medical Jurisprudence (2009), Dental Jurisprudence (2009), A Praxis in Community Health Nursing (2008),
Public Health Care for Community Development (2008), Nursing Law, Jurisprudence and Professional Ethics
(2007), to mention a few.
Revisiting the Philippine Educational System for Everyones Reflection
Thus, to fully understand the legal, historical and philosophical bases of Philippine
education over a period of time, it is essential to go beyond its constitutional mandate,
statutory policies and jurisprudence in education.
Observably, Philippine culture and society value education as a means to an
end. This is probably one reason why the Philippines has one of the highest literacy
rates in Asia and in the world. With their professional skills, proficiency in English,
ability to learn foreign languages, adjust to diverse working environments, and adapt
to new cultures, Filipinos are very much in demand in many parts of the world.
However, it is not enough that we put a premium on education in words; it has to be
translated into policies. Yes, education can serve as an engine of change and a road
to a successful life. But our children deserve a true Filipino education that is founded
on our own rich cultural heritage and values. They must be educated to know the
cultural and colonial roots of the present Philippine education system and understand
its ramifications for them to discern its true essence and philosophy, and develop
their own philosophical perspectives of education.
Elevazo and Elevazo (1995) support the authors view on the study of the
history and philosophy of Philippine education, thus:
The existing philosophys historical roots have their anchors in the
matrix of Philippine culture, experience and way of life, despite attempts
by foreign colonial educators to transplant a philosophy from their
respective cultures. It should be useful to have a clear understanding of
philosophys culture base, the Filipino psyche as well as the ideals and
aspirations of a people who, by accident of history, became known as
Filipinos not by choice but by force of circumstances (p.1).
This paper is divided into the following periods of education history: (a) pre-
historic and early education history, (b) colonial, revolutionary and commonwealth
period, (c) post-liberation Philippine education, and (d) post-EDSA educational system.
Notably, the colonial, revolutionary and common wealth period covers the three
important colonial periods in Philippine education history Spanish, American and
Japanese, the revolutionary and commonwealth periods of Philippine history.
Pre-Historic and Early Education History
The discovery of the Laguna Copperplate Inscription (LCI) which is dated
around 900 AD highlighted the evidence of cultural links present between the Tagalog-
speaking people of this time and the various contemporary civilizations in Asia,
most notably the Middle Kingdoms of India and the Srivijaya empire. It also made
900 AD as the current demarcation line between prehistoric period and the early
history of the Philippines. It heralded the earliest phase of Philippine history - the
time between the first written artifact in 900 AD and the arrival of colonial powers
in 1521. The prehistoric period (pre-900 AD) thus covers events prior to the earliest
142 IBP JOURNAL
Rustico T. De Belen
phase of Philippine history - the written history of what would become the Philippine
archipelago. It is presented here to enhance the discussion of pre-historic and early
education history of the Philippines.
For emphasis, 900 AD is now the recognized date of the first surviving written
record to come from the Philippines, the Laguna Copperplate Inscription (LCI), a
copperplate measuring 8 x 12 inches which was recovered in a sand quarry at Barangay
Wawa, Lumban, Laguna in 1989 (Tiongson, 2008). The plate has an inscribed date
of Saka era 822, corresponding to April 21, 900 CE (Common Era). Written in the
Kawi Script, it contains many words from Sanskrit, old Javanese, old Malay and old
Tagalog. It is evidently a legal document because it released its bearer, Namwaran,
from a debt in gold amounting to 1 kati and 8 suwarnas (865 grams) (ibid.). It also
mentions Tondo, Pila and Pulilan in the area around Manila Bay and Medan (or
rather, the Javanese Kingdom of Medang), Indonesia, apparently as places of trade
or business during that time.
The LCI and its Romanized transcription are shown below:
Laguna Copperplate Inscription (900 AD)
Romanized transcription
Laguna Copperplate Inscription (900 AD, which was discovered in 1987, is said to be more
advanced script than the other systems of writing thus far discovered in the country.
Source: http://www.mts.net/~pmorrow/lcieng.htm, accessed on 04/22/10.
Philippine history has long recognized the influences of ancient ancestors such
as Negritos, Indonesians and Malays in our system of education. Indigenous peoples
and indigenous cultural communities are now the more politically-correct terms.
Aside from these early groups who came and settled in the Philippines, there were
also ancient foreign traders such as Chinese, Hindus, and Arabs who influenced the
Filipino peoples way of life. The Malays are credited with bringing us their system
of writing known as Alibata, the ancient Filipino alphabet, although some historians
and anthropologists say that it came directly from the ancient Kavi script of Java,
Indonesia. Nevertheless, the Spanish noticed that Malay natives could read and write
with common scripts in Alibata. Translated as Baybayin in Filipino, Alibata had been
used in the country even before 1567 as reported by Miguel Lpez de Legazpi,
They [the Visayans] have their letters and characters like those of the Malays, from
whom they learned them (Scott (2), 1994: 94, 297). While Alibata has seventeen
(17) symbols - 3 vowels and 14 consonants, the LCI is an even more advanced script
in limited use in the country as far back as the year 900 A.D.
On top of the LCI as a prime evidence of
civilization during pre-Hispanic times, there are
also evidences of developments in the Philippine
archipelago from Stone Age cultures in 30000
BC to the emergence of advanced thalassocratic
civilizations in the 4th century AD. The first
evidence of the systematic use of Stone-Age
technologies in the country is estimated to date
back to about 50,000 BC, and this phase in the
evolution of proto-Philippine societies is
considered to have ended with the rise of metal
tools in about 500 BC, although stone tools
continued to be used past that date (Jocano,
2001: 108, 102). Notably, the LCI and other
discoveries such as the Golden Tara of Butuan
(a 4-pound gold statue of a Hindu-Malayan
goddess, found in Mindanao in 1917) and the
14th century pottery and gold jewelry artifacts
unearthed in Cebu are additional evidences of
the kind of civilization that the Philippines had
have during pre- and early history.
The fossilized portions of a human skull and jawbone of three individuals,
finished stone flake tools and waste core flakes carbon dated between 20,000 BC to
30,000 BC dug up at the Tabon Caves in Palawan further support the fact that there
lived a people in the Philippines during prehistoric times whose civilization was
approximately on a par with those that existed in other parts of the world. Jocano
(1998) points out that:
Alibata, ancient Filipino alphabet
144 IBP JOURNAL
Rustico T. De Belen
there were people here in the (Philippine) archipelago during the
prehistoric times. The descendants of these early groups are now known
as Filipinos! Their accumulated experiences constitute of (sic) what we
now know as Filipino culture (p.63).
The period of Barangay states and thassalocratic (rule of the sea) trade (200AD-
900 AD) saw the movement of various indigenous peoples groups across the country
which formed small political units known as a barangay, each headed by a Datu.
Each barangay normally had a population of about 1000 families. Notable barangays
with more than 1000 families are Zubu (Cebu), Butuan, Maktan (Mactan), Irong-Irong
(Iloilo), Bigan (Vigan), and Selurong (Manila). It was during this period that the
indigenous peoples and indigenous cultural communities (IPs/CCs) had a massive
contact not only with people of neighboring barangays or communities but also
from the other Southeast Asian and East Asian nations, making the era known for
inter-island and international trade. It also led to the development of a socio-political
and economic hierarchy with the rise of the Datu or ruling class; the Maharlika or
noblemen; the Timawa or freemen; and the dependent class which is divided into
two, the Aliping Namamahay (Slave) and Aliping Saguiguilid (Serfs).
Added to this are the historical and anthropological accounts on the peopling
of the Philippines such as the waves of migration, which were said to come from
various parts of the Asian mainland and from three great Malayan empires the
Shri-Visayan, the Madjapahit and the Malayan empires during prehistoric times (Elevazo
and Elevazo, 1995: 10). The ethos of the three great Malayan empires are believed
to have been influenced by the Hindu and Chinese cultures through contact in the
trading of products and through inter-marriage long before any Europeans or
Americans came to this part of the world (ibid.). These people highly prized jars as
symbols of wealth throughout South Asia, and later metal, salt and tobacco, and
exchanged them with feathers, rhino horn, hornbill beaks, beeswax, birds nests,
resin, rattan and others. Because of this, the IPs/ICCs in various parts of the
Philippine archipelago had tremendous contacts with traders from China, India and
Arab countries in earliest times. In fact, Arab missionaries came even before 1300
and inhabited Sulu, Tawi-Tawi and other parts of Mindanao (ibid.). They built a
formidable culture base firmly grounded on Islam, thus the Spanish colonizers failed
to subjugate them and impose their religious faith.
In other parts of the country, some barangays were found to be under the de
jure jurisdiction of one of several neighboring empires, among them the Malay Sri
Vijaya, Javanese Majapahit, Brunei, Melaka empires, although de-facto had established
their own independent system of rule. Trading links with Sumatra, Borneo, Thailand,
Java, China, India, Arabia, Japan and the Ryukyu Kingdom flourished and led to
the emergence of a thalassocracy due to international trade through the sea. There
were numerous prosperous centers of trade that emerged between the 7
th
century
until the invasion of Spain in 1521, particularly in Manila, Pangasinan, Cebu, Iloilo,
Butuan, to name a few. Unfortunately, almost all of these and other evidences of
civilization were destroyed during the Spanish period.
With the remaining evidences of a civilization in the Philippines during the
prehistoric period (pre-900AD) and early Philippine history (900 AD 14
th
Century
AD), the indigenous philosophy of education may not be difficult to infer. This can
be observed from the families, tribes, clans and kinship system that valued human
life and had notions of honor and dignity. The development of prosperous barangays
due to massive inter-island and international trade, on top of well-defined political
organizations and definable culture during prehistoric times are testaments to the
indigenous efforts and the capacity of indigenous peoples to educate themselves in
their ways.
Colonial, Revolutionary and Commonwealth Education
Filipinos have been taught that these difficult and trying times are the periods
of struggle and liberation of the Filipino people. No amount of resistance against
colonization could prevent the colonizers from imposing and forcing upon us their
systems of education. They inhabited our country and imposed upon the Filipino
people their beliefs, value system, customs and traditions in all aspects of life. Their
policies displayed a hybrid system of education through the amalgamation of local
Philippine culture and their colonial impositions. However, they were faced with
diverse views and struggles of patriotic Filipino leaders. Some unconditionally rejected
and fought the colonizers, including the introduction of their systems of education.
Others, however, simply accepted the foreign education systems through
collaboration. There were also those who struggled for the integration of the
indigenous culture and values into their foreign systems. Thus, this period of education
history was marred by colonial indoctrination as the people were prevented to
question or critically examine the teachings of colonizers, contrary to the present
concept of education that allows critical self-evaluation and skeptical scrutiny of
ones teachings.
Spanish Colonial Period. The Spanish colonial period (1521-1898) begins
with the arrival of European-Portugese explorer Ferdinand Magellan in 1521 and
ends in 1898. Spanish colonization drastically changed the indigenous system of
education as tribal tutors were replaced by Christian Missionaries. The educational
system was basically oriented towards propagation of the Catholic faith. It was
elite-based, run by the clergy and served primarily the ruling class. Education was
then a privilege that was never made available to the native Indios. The natives who
were privileged to be educated under this system were exhaustively taught or
indoctrinated to be loyal to the Spanish crown and blindly obey the conquistadores.
Public compulsory education was initiated and implemented through the enactment
the Educational Decree of 1863.
The Education Decree of 1863 mandated a system of free, compulsory primary
education. It decreed the establishment of primary school for boys and girls in each
town under the responsibility of the municipal government; and a normal school for
male teachers under the tutelage of the Jesuits. It included the compulsory teaching
146 IBP JOURNAL
Rustico T. De Belen
of the Spanish language. This system of education benefited largely the illustrados or
those who came from affluent Filipino families that could afford to send their children
to the limited number of secondary and tertiary schools (colegios) open to selected
non-Spaniards. Although it did not reach most Filipinos, by 1898, enrollment in
schools at all levels was said to have exceeded 200,000 students. In short, most
native Filipinos were denied of such right and only a few who served as acolytes in
church and servants to the Spaniards were lucky enough to receive Spanish education
through the benevolence or forbearance of their masters.
Citing the Joint Congressional Committee on Education Report entitled
Improving the Philippine Education System (1949), Elevazo and Elevazo (1995) point
out the underlying philosophical concerns of education during the Spanish period to
be: (1) the development of knowledge of the Christian faith and ethics in preparation
for the afterlife; (2) ability to read, write and count, and a command of fundamental
tools and knowledge; (3) training for allegiance to the colonial rule of Spain; (4)
vocational skills in agriculture and trade; and (5) ability to sing and read music
primarily to participate in religious activities and secondarily for leisure (p.14). The
overarching goal of the Spaniards in the Philippines was thus the evangelization of
the Filipino. Observably, some native Filipinos, who were converted into the Catholic
faith, practiced their new-found faith with their indigenous beliefs. Others, however,
resisted everything Spaniard and fought for their liberation. They developed a
philosophy of education based on their indigenous and secular orientation.
The heroism of Jose Rizal and Andres Bonifacio reflects the two diverse
conditions of Philippine education during the Spanish regime. Unlike Bonifacio who
was known for being a self-educated native or Indio, Rizal was educated in the two
prominent Spanish-run universities in the Philippines Ateneo de Manila and
University of Sto. Tomas and earned a medical degree in Spain. He hated the
Spanish cruelty to the natives as shown in his novels and essays. However, he wanted
only justice under the rule of law of Spain, and went on to counsel against the
revolution and refused to lend his name to it because he believed it was hopeless.
On the other hand, in spite of his lack of formal education, Bonifacio led the most
successful insurrection ever against Spain as he wanted nothing from the latter. The
success of his rebellion was evidenced by the fact that it was dubbed as the Philippine
Revolution. Bonifacio dreamed of one thing for the Filipinos - sovereignty. He wrote
the Katipunan as the guiding document of the first truly Filipino government. He
did not become the president of the first Philippine Republic as Aguinaldo was
voted over him by the rich-dominated Tejeros convention, who believed that his
lowly background made him unfit to lead the revolutionary government, and this
country. Worse, upper class Spanish-educated Aguinaldo pursued the will of the
Spaniards and signed the death warrant of Bonifacio.
Some historians believe that the Katipunan must be proclaimed as the first
Philippine Republic with Andres Bonifacio as the first president. Bonifacio first
introduced the concept of the Philippine nation in Haring Bayang Katagalugan
(Sovereign Tagalog Nation) which was replaced by Aguinaldos concept of Filipinas
after his election as President during the Tejeros convention on March 22, 1897
(Guerrero, et al., 1998: 166-167). The Tagalog Republic under the Katipunan
revolutionary government (1896-1897) predated what is now known as the First
Philippine Republic. The term Tagalog, although historically used to refer to an ethnic
group, their language, and script, is not restricted to the Tagalog regions of Luzon,
hence, it is equally embracing as Aguinaldos concept of Filipinas consisting of Luzon,
Visayas and Mindanao (comprising the modern Philippines). Guerrero writes that
Bonifacio and the Katipunan already had an all-encompassing view of the Philippine
nation as evidenced by the Kartilla which defines Tagalog as all those born in this
archipelago; therefore, though Visayan, Ilocano, Pampango, etc. they are all Tagalogs
(Guerrero, 1996: 3-12).
In the final analysis, only few Filipinos took advantage of the Spanish
education system. The Spaniards deprived the native Indios like Bonifacio of their
rights to education as they put up an unconditional resistance or struggle to be free,
or to enjoy freedom in a sovereign nation. The Spaniards were preoccupied with
their colonization efforts through forced political subjugation and evangelization of
Filipinos to assuage their resistance and rebelliousness against the collection of forced
tributes and the enforcement of forced labor, and to ward off protracted rebellions
across the country (ibid., p. 18). Thus, educating the natives was their least priority,
or not at all.
The First Philippine Republic. The revolution period towards the end of
the 19
th
century was a momentous event in Philippine education history. It ended
the long period of oppression and gave birth to the enjoyment of civil and political
rights and the right to education. Article XXII of the Provisional Constitution written
in Biak-na-Bato contained, among others, a provision on education: Religious liberty,
the right to association, the freedom of education, the freedom of the press, as well
as freedom in the exercise of professions, arts, trades and industries are established.
The Malolos Constitution, which superseded the Provisional Constitution of Biak-
na-Bato, clearly mandated the separation of Church and State, and decreed a system
of free and compulsory elementary education. This officially declared the First
Philippine Republic, which was formally established with the proclamation of the
Malolos Constitution on Jan. 21, 1899. The First Republic endured until the capture
and surrender of Aguinaldo to American forces on March 23, 1901, after which it
was effectively dissolved.
The Revolutionary Government pursued remarkable efforts to promote the
education of the people after its establishment on June 12, 1898. It created a position
of Director of Public Instruction under the Secretario de Fomento, to handle education
matters. The schools maintained by Spain for more than three centuries were closed
for the time being but were reopened on August 29, 1898. The Burgos Institute in
Malolos, the Military Academy of Malolos (now the Philippine Military Academy),
and the Literary University of the Philippines were established. In spite of the policy
changes, the First Philippine Republic was left with no choice but to start with some
elements of the existing educational institutions under Spanish colonial rule,
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particularly in higher education. Nonetheless, it excluded the teaching of religion at
all levels and focused on the development of Filipino citizenship and nationalism.
The philosophy of education during the revolutionary period was centered on
freedom and love of country within the context of love of God (ibid., p.22). This
Filipino value was the dominant theme of Andres Bonifacios Duties of the Sons of
the People and Apolinario Mabinis Decalogue.
The First Philippine Republic was unfortunately short-lived, thus its philosophy
on education failed to reach full flowering and fruition (ibid., p. 23). Nevertheless,
it gave opportunities for those Filipino revolutionary heroes to espouse, albeit for a
short time, the true aspirations, visions and values of Filipino education. These
revolutionary heroes struggled for a government ran by Filipinos and protective of
the interest and welfare of the Filipino people and the creation of a sovereign republic.
Their essence of love of country was so strong as to require even the supreme
sacrifice of ones life (ibid.). They wanted a sovereign country founded on its rich
cultural heritage, values and tradition. They envisioned an indigenous right- and
culture-based educational system that every Filipino could be proud of.
American Colonization Period. The Treaty of Paris on December 10,
1898 marked the beginning of another colonial regime in the Philippines. Concluded
without participation of Filipino leaders, it ended the Spanish-American war and
started a new era of another colonial master. It also put a price tag for the Filipino
people as the Philippines was ceded to the United States by Spain for the paltry sum
of US$20 million. Like any other transaction, one who pays the price expects
something in return plus profits. In the process, the Americans disregarded the
political rights of the Filipino people in this anomalous transaction as they did not
even ask for their consent and took it upon themselves to decide the fate of the
Filipinos. Aware of the Philippine struggle and the Filipinos hard-won freedom from
Spain, the Americans did not allow us to savor this new found freedom, but made us
believe that they came here to civilize us. They forced upon us parity rights
agreements all in their favor, while we were swamped with propaganda and hypocrisy
about their democratic ideals, particularly freedom, self-determination and self-
governance. Some call it imperialism; others dub it as plain and simple greed.
The US-sponsored military government in the Philippines used the First
Philippine Commission as its instrumentality to impose their form of colonial
governance in the country. It promulgated legal policies affecting all aspects of our
lives, including education. With the mandate of then President Willian McKinley,
the Commission was instructed to institute an adequate secularized and free public
school system during the first decade of American rule, to enable the people to
become a civilized community (ibid., p. 25). The free primary instruction carried
with it the teaching of the duties of citizenship, simple livelihood and avocation as
mandated by the Taft Commission per instructions of President McKinley. Chaplains
and non-commissioned officers were assigned to teach in the country using English
as the medium of instruction.
The American period was known for the establishment of a highly centralized
public school system by virtue of Act No. 74, which was enacted by the Philippine
Commission in 1901. Regarded as the first educational law under the American
regime, and known as the first organic school law of the Philippines, it resurrected
the public primary school system. The Americans patterned the Philippine public
school system after their system of education. The Philippine public schools used
American textbooks and reading materials to teach subjects in reading, writing,
arithmetic, language, gardening, domestic science, American history, and Philippine
history. There were very limited technical education courses for the Filipinos as the
Americans did not want them to be educated beyond what they envisioned them to
be. Vocational education focused on gardening, carpentry, sewing, lace making, and
almost everything that would civilize the uncivilized Filipino (p. 27). In short, the
Americans took the responsibility of thinking for the Philippines, as did the
Spaniards, and of charting their educational future (p. 29).
The implementation of Act No. 74 caused a heavy shortage of teachers in the
country. Because of this, the Philippine Commission authorized the Secretary of
Public Instruction to bring to the Philippines more than 1600 teachers from the
United States, popularly called the Thomasites, between 1901 and 1902. These
teachers were dispersed throughout the islands to establish barangay schools and
teach the people. The Commission activated the Philippine Normal School (now the
Philippine Normal University) to train Filipino teachers for the public schools to
arrest the problem. In line with the system of governance, the Philippine Commission
mandated the provincial governments to support the high school system and created
special educational institutions, schools of arts and trades, agricultural schools, and
commerce and marine institutes in 1902. In 1908, the Philippine Legislature approved
Act No. 1870 which created the University of the Philippines. It enacted Act No.
2706, otherwise known as the Private School Law. It also passed the Reorganization
Act of 1916 providing for the Filipinization of all department secretaries except the
Secretary of Public Instruction.
After two-and-a-half decades of American colonial government, the Monroe
Survey Commission was created in 1925 to evaluate the Philippine educational
system. The Monroe Commission found it deficient in the area of self-governance.
Because of this, the American Undersecretary of Public Instruction formulated the
policy that in so far as the state is concerned, the primary aim of education is to
prepare the individual to exercise the right of suffrage intelligently and to perform
the duties of citizenship fully and honestly (p.30). With this, the public education
system focused its philosophy on the teaching of the rudiments of self-government,
and the use of English as a common language. The Americans did not really want us
to be free early on. All their efforts displayed their lack of sincerity in helping us to
become a fully self-governing nation. Indeed, it was already late (only after it had
been forced upon us for two decades) when they realized that they could not impose
their system of education, as it would (as it did) undermine our cherished culture,
values and aspirations. Sadly, the Americans failed to consider these important aspects
of our humanity.
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Nevertheless, the concept of American education may be given credit for
opening opportunities for the wealthy few who were given the privilege to study in
the United States and learn the true essence of freedom and democracy. The masses
of Filipinos who availed of their public school system in the country waited for so
long before they were finally taught the true ideals of democracy, principles of justice
and freedom, and the tenets of people participation in decision-making. The greatest
essentials of the American education system were not transported in the Philippines
during the American colonial period; if ever they were, they remained in the pages
of their textbooks where they belonged because they were never taught and
implemented.
Commonwealth Period. From 1935 to 1946, the Philippines was considered
a commonwealth and this system of government or political designation of the
Philippines prevailed, although it was shortly interrupted during the Japanese
occupation. Prior to 1935, the status of the Philippines was virtually undefined.
Some called it an insular territory with non-commonwealth status. The history of
the Philippine Commonwealth is similar to the Commonwealth of the Northern
Mariana Islands (CNMI), a commonwealth in political union with the US. The
difference is that the Northern Mariana Islands and the nearby island of Guam have
remained as US territories even up to the present, as they occupy a strategic region
of the western Pacific Ocean. Northern Mariana Islands, which is part of Micronesia,
comprises the former Mariana Islands District of the Trust Territory of the Pacific
Islands. It consists of three main islandsSaipan, Tinian, and Rotaand several
small islands and atolls. It is located just north of Guam; Saipan lies about 125 miles
northeast of Guam, but southernmost Rota is less than 50 miles from Guam. The
Northern Mariana Islands, together with Guam to the south, compose the Mariana
Islands.
Historically, Spain began colonizing the said islands in 1668. Originally called
Islas de Ladrones (Islands of Thieves), the Spanish renamed them in 1688 in honor of
Queen Mariana of Spain. Spain sold the Marianas, as well as the Carolines and
Marshalls, to Germany in 1899 to raise money after the Spanish-American War. In
1914, during World War I, Japan claimed jurisdiction over all these islands after
entering the war on the side of the Allied Powers; it retained them officially under a
1919 mandate of the League of Nations. The US gained control of the islands through
military victories in 1944, and established a military government following World
War II. Thereafter, the islands were administered by the US as part of the United
Nations Trust Territory of the Pacific Islands; thus, defense and foreign affairs
remained the responsibility of the US. CNMI decided not to seek independence, but
instead negotiated for territorial status in early 1970s. A covenant to establish a
commonwealth in political union with the U.S. was approved in 1975. A new
government and its constitution went into effect in 1978. Since then, CNMI has
been regarded as a commonwealth in political union with the US without
representation in the U.S. Senate, but it is represented in the US House of
Representatives by a delegate (beginning January 2009 for the CNMI), who may
vote in committee but not on the House floor.
On the other hand, the creation of the Philippine Commonwealth was
envisioned under the Philippine Independence Act, popularly known as the Tydings-
McDuffie Act. It provided for a ten-year transition period to independence, during
which the Commonwealth of the Philippines would be established. The
Commonwealth was officially inaugurated on November 15, 1935. It had its own
constitution, which remained effective until 1973, and was self-governing, although
foreign policy and military affairs remained under the responsibility of the United
States and the passage of law by the legislature affecting immigration, foreign trade,
and the currency system had to be approved by the United States president. At the
outset, the US did not really intend to make the Philippines its territory like CNMI
and Guam because they wanted to control only selected parts of this country through
its military bases. Added to this was the resistance being put up by our leaders then
who were against Americans.
Be that as it may, the 1935 Constitution provided the framework and philosophy
for public education system in the Philippines. Section 5, Article XIV provides that:
Section 5. All educational institutions shall be under the supervision
of and subject to regulation by the State. The Government shall establish
and maintain a complete and adequate system of public education, and
shall provide at least free public primary instruction, and citizenship
training to adult citizens. All schools shall aim to develop moral character,
personal discipline, civic conscience, and vocational efficiency, and to teach
the duties of citizenship. Optional religious instruction shall be maintained
in the public schools as now authorized by law. Universities established
by the State shall enjoy academic freedom. The State shall create
scholarships in arts, science, and letters for specially gifted
citizens.(Underscoring supplied).
Considering the foregoing constitutional mandate, Manuel L. Quezon, the
elected President of the Commonwealth, formulated a system of guiding principles
to serve as standards of behavior for the Filipino people, especially the youth. He
issued Executive Order No. 17, now known as the Quezon Code of Ethics, reciting
the foundational philosophy for the emerging system of Philippine education. It
contains fundamental guidance on how to develop moral character, personal discipline,
civic conscience, and the duties of citizenship. The first two principles therein are
about faith in Divine Providence and Love of Country. The basic legal guidelines
that actually implemented the constitutional provision on education under the 1935
Constitution were embodied in Commonwealth Act No. 586, which was enacted to
substantially reform the public school system along the following principles:
(1) to simplify, shorten, and render more practical and economical both
the primary and intermediate courses of instruction so as to place the
same within the reach of the largest possible number of school
children;
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(2) to afford every child of school age adequate facilities to commence
and complete at least the primary course of instruction;
(3) to give every child completing the primary course an adequate working
knowledge of reading and writing, the fundamentals of arithmetic,
geography, Philippine history and government, and character and civic
training; and
(4) to insure that all children attending the elementary schools shall
remain literate and become useful, upright, and patriotic citizens.
The Commonwealth period which lasted for about seven years after it was
inaugurated in 1935 was interrupted by the Japanese occupation. It thus wrote down
an important milestone in the legal and philosophical history of Philippine education
because education during this period was made available equally to the rich and
poor, at least in principle.
Japanese Colonial Period. Japan invaded the Philippines in 1942. The war-
time educational objectives and philosophy of the Japanese Imperial Forces were
pronounced on February 17, 1942 by its Commander-in-Chief, thus:
(1) to make people understand the position of the Philippines as a
member of the East Asia Co-Prosperity Sphere, the true meaning of
the establishment of a New Order in the sphere and the share which
the Philippines should take for the realization of the New Order, and
thus to promote friendly relations between Japan and the Philippines
to the furthest extent;
(2) to eradicate the old idea of reliance upon the Western nations,
especially the USA and Great Britain, and to foster a new Filipino
culture based on the self-consciousness of the people as Orientals;
(3) to endeavor to elevate the morals of the people, giving up the
overemphasis on materialism;
(4) To strive for the diffusion of the Japanese language in the Philippines
and to terminate the use of English in due course;
(5) to put an importance to the diffusion of elementary education and to
the promotion of vocational education; and
(6) to inspire the people with the spirit to love labor (Elevazo and Elevazo,
1995: 39-41, citing Circular No. 1, s. 1942, Bureau of Public Instruction).
During this period, the Philippine Executive Commission established the
Commission of Education, Health and Public Welfare, and schools were reopened
in June 1942. The Japanese military administration immediately conducted re-
orientation and re-training of Filipino pre-war teachers for the attainment of the
above objectives. On October 14, 1943, the Japanese-sponsored Republic created
the Ministry of Education. Under the Japanese regime, the teaching of Tagalog,
Philippine History, and Character Education was reserved for Filipinos. Love for
work and dignity of labor was emphasized. On February 27, 1945, the Department
of Instruction was made part of the Department of Public Instruction. The Japanese
colonial regime supported elementary education and promoted vocational education,
notable of this were livelihood training in fish culture and duck raising. It tried to
immediately transform Philippine society through an educational system which was
politically, economically, culturally and ideologically oriented toward the
establishment of the East Asia Co-Prosperity Sphere. Thus, its philosophy of
education was basically anti-American.
As a whole, during this period (1941-1945), the Filipinos were taught how to
be resilient in the face of adversities. While Filipino teachers were forced to teach
war ideology and a Japanese brand of morality against the West, we saw the fierce
resistance of the people in the countryside against the cruelty of the Japanese. With
the lessons learned in the previous wars, the efforts of the Japanese to re-educate
the Filipinos were confronted with contrived avoidance and circumvention in the
process of implementation, if not actual physical combat in the countryside. The
Japanese did not actually make a remarkable dent to the already deeply embedded
Western-imposed educational system in the Philippines.
The Philippine educational system during the colonial, revolutionary and
commonwealth periods was also tainted with colonialism. But it was not easy for the
colonizers to impose their systems of education as they were met with vicious
resistance from the patriotic Filipinos. In the midst of adversity and war, education
become a catalyst of change as it brought the best in some Filipinos, who developed
and implemented legal education policies and philosophy resembling the rich history,
culture, values and tradition of the Filipino people.
Post-Liberation Philippine Education
Some authors limit the discussion of post-liberation period of education from
the time the Philippines was liberated from Japan in 1945 to the pre-Martial Law
period (1945-1970). This part presents the state of the Philippine educational system
during the Marcos regime. The succeeding discussions include the systems of
Philippine education after World War until the end of the Marcos regime. The post-
liberation Philippine educational system starts from the end of the four-year Japanese
occupation or the termination of World War II and the restoration of the Philippine
independence on July 4, 1946, during which the dominant philosophy of Philippine
education to foster faith in democracy as a way of life. President Manuel Roxas, at
the inauguration of the Third Philippine Republic on July 4, 1946, defined this
direction of Philippine education pursuant to the mandate of the 1935 Constitution.
Thereafter, Executive Order No. 94 was issued in 1947, which changed the
Department of Instruction to the Department of Education. This period also saw
the creation of the Bureau of Public and Private Schools in charge of the regulation
and supervision of public and private schools. It marked the beginning of a new
direction for the Philippine educational system as it was no longer boxed in, nor
required to follow the US model. However, the Western system of education was
already practically transplanted in the country.
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One important piece of legislation during this period was R.A. No. 896,
otherwise known as the Elementary Education Act of 1953. It made compulsory the
enrollment of a child the next school year following his/her seventh birthday and
the requirement for him/her to remain in school until he completed elementary
education, subject to the same exceptions provided under Commonwealth Act No.
586 and the said Act. It also restored Grade VII, provided that the pupils who were
in Grade VI at the time of its implementation were no longer required to complete
the seventh grade in order to be eligible for first year high school. Laws and policies
on education were basically guided by Article XIV, Section 5 of the 1935
Constitution, thus: All schools shall aim to develop moral character, personal
discipline, civic conscience, and vocational efficiency, and to teach the duties of
citizenship. This constitutional proviso served as the essential principle of education
during the Philippine Commonwealth.
Notably, the right to education has been universally recognized since the
Universal Declaration of Human Rights in 1948. Article 26 of the Declaration
proclaims that: Everyone has the right to education. Education shall be free, at least
in the elementary and fundamental stages. Elementary education shall be
compulsoryeducation shall be directed to the full development of human personality
and to the strengthening of respect for human rights and fundamental freedoms. It
shall promote understanding, tolerance and friendship among racial or religious
groups This right has since been enshrined in various international conventions,
regional treatises, national constitutions, statutes, and development plans of various
countries of the world.
For instance, recognizing the right of education as a basic human right, Article
2 of the first Protocol to the European Convention on Human Rights (1952) obliges
all signatory parties to guarantee the right to education. The United Nations
International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)
guarantees this right under its Article 13. The Convention on the Elimination of All
Forms Of Discrimination Against Women (CEDAW, 1979) and more recently, the
Convention On The Rights of The Child (CRC, 1989) also include the right to
education. The Philippines is a signatory to the foregoing United Nations conventions.
However, the right to basic education has been formally recognized as a human right
in the Philippines since 1935, with the enactment of the 1935 Constitution. The
right to basic education as a human right means that basic education is something
that the Filipino people are entitled to, which they can claim without having to pay
for its access and the government is obliged to provide it for free. This constitutional
policy has been pursued from post-liberation to the present.
For clarity and guidance, the Department of Education (DepEd) summarizes
the history and legal bases of the Philippine basic educational system starting from
the Spanish colonial period to the present. Considering that the powers and functions
of DepEd over vocational and technical education and training (TVET) and higher
education (HE) ceased only in 1994, the table below applies to the legal history of
post-secondary education (TVET and HE) from 1863 to 1994.
YEAR OFFICIAL NAME OFFICIAL LEGAL BASES
OF DECS TITULAR HEAD
1863 Superior Commission Chairman Educational
of Primary Instruction Decree of 1863
1901-1916 Department of Public Instruction General Act. No. 74 of the
Superintendent Philippine Commission,
Jan. 21, 1901
1916-1942 Department of Public Instruction Secretary Organic Act Law of 1916
(Jones Law)
1942-1944 Department of Education, Commissioner Renamed by the Japanese
Health and Public Welfare Executive Commission,
June 11, 1942
1944 Department of Education, Minister Renamed by Japanese
Health and Public Welfare Sponsored Philippine
Republic
1944 Department of Public Instruction Secretary Renamed by Japanese
Sponsored Philippine
Republic
1945 - 1946 Department of Public Instruction Secretary Renamed by the
and Information Commonwealth
Government
1946 - 1947 Department of Instruction Secretary Renamed by the
Commonwealth
Government
1947 - 1975 Department of Education Secretary E.O. No. 94 October 1947
(Reorganization Act of 1947)
1975 - 1978 Department of Education Secretary Proc. No. 1081,
and Culture September 24, 1972
1978 - 1984 Ministry of Education Minister P.D. No. 1397,
and Culture June 2, 1978
1984 - 1986 Ministry of Education, Minister Education Act of 1982
Culture and Sports
1987 - 1994 Department of Education, Secretary E.O. No. 117.
Culture and Sports January 30, 1987
1994 - 2001 Department of Education, Secretary RA 7722 and RA 7796,
Culture and Sports 1994 Trifocalization
of Education Management
2001 Department of Education Secretary RA 9155, August 2001
present (Governance of Basic
Education Act)
Source: http://www.deped.gov.ph/about_deped/history.asp, accessed 4/30/10.
As the basic and fundamental law of the Philippine education, the 1935
Constitution, which was promulgated after the inauguration of the Philippine
Commonwealth, was re-activated after the Japanese occupation. It governed our
educational system for more than three decades. It was replaced by the 1973
Constitution as an offshoot of the declaration of Martial Law. President Marcos
introduced a model of education based on the vision of a new society. He believed
that the 1935 Constitution had vestiges of colonialism and was already irrelevant
to the new society. Contrary to the colonial nature of the previous constitution, the
1973 Constitution was a product of the dictatorial rule.
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As a background, Proclamation No. 1081 was issued in 1972 in which the
Department of Education became the Department of Education and Culture. On
September 24 1972, by virtue of P.D. No 1, the Department of Education, Culture
and Sports (DECS) was decentralized with decision-making powers shared among
thirteen regional offices. The 1973 Constitution, which was ratified on January 17
1973, set out the three fundamental aims of education in the Philippines: (a) to
foster love of country; (b) to teach the duties of citizenship; and (c) to develop moral
character, self discipline, and scientific, technological and vocational efficiency (Tulio,
2008: 120). In 1978, by virtue of PD No 1397, the Department of Education and
Culture became the Ministry of Education and Culture.
Article XV, Section 8 of the 1973 Constitution defined and set the
constitutional framework of the Philippine education system after martial rule, thus:
Section 8. (1) All educational institutions shall be under the supervision
of and subject to regulation by the State. The State shall establish and
maintain a complete, adequate, and integrated system of education
relevant to goals of national development.
(2) All institutions of higher learning shall enjoy academic freedom.
(3) The study of the Constitution shall be part of the curricula in all
schools.
(4) All educational institutions shall aim to inculcate love of country,
teach the duties of citizenship, and develop moral character, personal
discipline, and scientific, technological, and vocational efficiency.
(5) The State shall maintain a system of free public elementary
education and, in areas where finances permit, establish and maintain a
system of free public education at least up to the secondary level.
(6) The State shall provide citizenship and vocational training to adult
citizens and out-of-school youth, and create and maintain scholarships
for poor and deserving students.
(7) Educational institutions, other than those established by religious
orders, mission boards, and charitable organizations, shall be owned solely
by citizens of the Philippines, or corporations or associations sixty per
centum of the capital of which is owned by such citizens. The control and
administration of educational institutions shall be vested in citizens of
the Philippines. No education institution shall be established exclusively
for aliens, and no group of aliens shall comprise more than one-third of
the enrollment of any school. The provisions of this subsection shall not
apply to schools established for foreign diplomatic personnel and their
dependents and, unless otherwise provided by law, for other foreign
temporary resident.
(8) At the option expressed in writing by the parents or guardians, and
without cost to them and the government, religion shall be taught to
their children or wards in public elementary and high schools as may be
provided by law.
In line with the said constitutional proviso, B.P. Blg. 232, also known as the
Education Act of 1982, instituted an integrated system of education covering both
formal and non-formal education at all levels. Section 29 of the Act mandated to
upgrade education institutions standards to achieve quality education, through
voluntary accreditation for schools, colleges, and universities. The voluntary
accreditation of schools became very controversial when the CHED established the
Institutional Quality Assurance Monitoring and Evaluation (IQAME) in 2005 for
regulation of the existing accreditations of private schools. Because of this, former
President Arroyo issued E.O. No. 705, on January 2, 2008, as amended by E.O. No.
705, which was issued on April 10, 2008. E.O. No. 705 subjected private schools not
accredited by the Philippine Accrediting Association of Schools, Colleges and
Universities (PAASCU) to the Institutional Quality Assurance Monitoring and
Evaluation (IQAME) process. Sec. 1 of E.O. No. 705 was amended as follows:
Section 1. Higher education institutions with programs accredited by the five
existing accrediting agencies, namely: the Philippine Accrediting Association of Schools,
Colleges and Universities (PAASCU), the Philippine Association of Colleges and
Universities Commission on Accreditation (PACU-COA), the Association of Christian
Schools, Colleges and Universities Accrediting Agency (ACSCU-AA), the Accrediting
Agency of Chartered Colleges and Universities (AACUP), and the Association of
Local Colleges and Universities Commission on Audit (ALCU-COA), shall not be
subjected by the Commission on Higher Education (CHED) under the process of
Institutional Quality Assurance Monitoring and Evaluation (IQUAME), provided
that these accrediting agencies conform with a set of common standards formulated by
a Coordinating Council on Accreditation (CCA), hereafter to be established by the
CHED.
The foregoing executive issuances are the very legal bases of CHEDs regulation
of the accreditation of private schools. President Arroyo issued said executive
issuances pursuant to her powers under the Constitution and Executive Order No.
292 (the Administrative Code of 1987). The president thus validly delegated her
power to CHED by directing it to formulate common policies and standards for
existing accrediting agencies to enhance and improve the quality of education in the
country.
However, Fr. Joaquin G. Bernas, S.J believes otherwise, contending that
accreditation shall be voluntary in nature. (Sounding Board: CHED attempts
martial law over school accreditation, PDI, Dec. 209, 2009). He said that B.P. Blg.
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232 (Education Act of 1982) and its implementing rules and Republic Act No. 7722
(CHED Act) did not give CHED the power to issue rules and regulations on
accreditation. To make rules and regulations issued by administrative agencies valid,
he enumerated three conditions that must be satisfied: (1) there is a law delegating
the rule-making power; (2) the delegating law contains standards for the executive
agency to follow; (3) the rules stay within the standards set by the delegating law.
The CHED has been subsidizing the accrediting agencies in the accreditation
of private schools, which have to pay certain fees to the accrediting bodies for their
accreditation in accordance with law. With this and the said executive order mandating
the accrediting agencies to conform with a set of common standards formulated by
the Coordinating Council on Accreditation (CCA) of CHED, it is just proper as
part of the sovereign function of the CHED to regulate higher education, including
its accreditation, notwithstanding the fact that the law (B.P. Blg. 232) states that
accreditation is voluntary, thus:
Section 29. Voluntary Accreditation - The Ministry shall encourage
programs of voluntary accreditation for institution(s) which desire to meet
standards of quality over and above (the) minimum required for State
recognition.
Education is not a business or industry to be free of government restriction or
regulation. It is not an economic activity that follows the laissez-faire theory. It is
impressed with public interest. With the dismal performance of some accredited
schools in various licensure examinations on top of the poor performance of
accrediting agencies in the accreditation process as they have accredited only a few
schools thus far, the government through CHED cannot close its eyes as it is
mandated to ensure quality education. These are among the reasons for the necessity
of regulating the accreditation of private schools. The CHED also wants to see to it
that the millions of pesos allocated for those accrediting agencies are properly spent
and accounted for. The authority to regulate the accrediting agencies is well within
its sovereign function to fulfill its mandate to provide quality education for all.
No less than the Supreme Court ruled that the administration and regulation
of education is a sovereign function of the government to be exercised for the benefit
of the public. Citing Laurel v. Desierto (430 Phil. 658; G.R. No. 145368, April 12,
2002), it defined public office as the right, authority and duty, created and conferred
by law, by which, for a given period, either fixed by law or enduring at the pleasure
of the creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the public
(Serana vs. Sandiganbayan, G.R. No. 162059, January 22, 2008). It also said that
Delegation of sovereign functions is essential in public office. It ruled in the Serana
case that:
The administration of the UP is a sovereign function in line with
Article XIV of the Constitution. UP performs a legitimate governmental
function by providing advanced instruction in literature, philosophy, the
sciences, and arts, and giving professional and technical training.
Moreover, UP is maintained by the Government and it declares no
dividends and is not a corporation created for profit.
Sections 16 and 17 thereof upgraded the obligations and qualifications required
for teachers and administrators. Section 41 provided for government financial
assistance to private schools. The Act also created the Ministry of Education, Culture
and Sports. Although the law has some provisions showing biases against the private
sector as the governments strict control and supervision over schools affect primarily
the private and not necessarily the public school system, it is a good law as it mandates
the State to promote and maintain (1) the right of every individual to relevant quality
education, regardless of sex, age, creed, socio-economic status, physical and mental
conditions, racial or ethnic origin, political or other affiliation, (2) the equality of
access to education as well as the enjoyment of the benefits of education by all its
citizens, and (3) the right of the nations cultural communities in the exercise of their
right to develop themselves within the context of their cultures, customs, traditions,
interest and belief, and recognizes education as an instrument for their maximum
participation in national development and in ensuring their involvement in achieving
national unity (Sec. 3).
Although the Philippine education system under the Marcos regime was
subjected to intense opposition and protests from various sectors, particularly when
it introduced the ideology for the new society in the basic education level through
textbooks and other instructional materials, it produced the Education Act of 1982,
a landmark piece of legislation that provided for the development of education in
the country. President Marcos was also known for the passage of P.D. No. 1006,
declaring teachers as professionals and teaching as a profession. This decree required
all teachers to pass the Professional Board Examination for Teachers (PBET) before
they were allowed to teach and provided for the creation of National Board for
Teachers tasked to prepare and administer the PBET. Included in this was the passage
of the Magna Carta for Public School Teachers that decreed the improvement of the
socio-economic welfare of educators and their protection.
In spite of this, the Filipino people found the imposition of the ideology of the
new society into the educational system dictatorial and oppressive and they dramatized
their protest on the streets leading to the 1986 EDSA revolution. With this, the
ideology of the new society which President Marcos envisioned for the Filipino people
to become responsible, productive and patriotic citizenry came to an end.
Post-EDSA Educational System
This period covers the period from the time President Corazon C. Aquino
ascended to power up to the present. After President Aquino assumed the presidency,
the 1987 Constitution was ratified on 2 February 1987. Section 3, Article XIV of
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the 1987 Constitution contains the ten elemental aims of education in the Philippines.
Prior thereto, President Aquino issued Executive Order No. 117, reorganizing the
Ministry of Education, Culture and Sports, in the process renaming the Bureau of
Sports Development as the Bureau of Physical Education and School Sports, and
the Bureau of Continuing Education as the Bureau of Non-Formal Education. The
structure of DECS as embodied in EO No. 117 remained practically unchanged until
1994.
Evidently, education plays a vital role to protect human rights, promote human
dignity, and attain human progress. It is also an important instrument of socio-
economic growth and sustainable development. This is precisely the main concern
of Philippine education under the 1987 Constitution. Its focus is on the learner as
the means and the end of development. It aims to address not only individual needs
but also community needs. The duties of all educational institutions in relation to
this mandate are clearly stated in Art XI, Sec. 3 (par. 2) of the 1987 Constitution:
They shall inculcate patriotism and nationalism, foster love of humanity, respect
for human rights, appreciation of the role of national heroes in the historical
development of the country, teach the rights and duties of citizenship, strengthen
ethical and spiritual values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden scientific and technological
knowledge, and promote vocational efficiency. The complementary roles of public
and private educational institutions are thus recognized in the pursuit of the above
objectives.
The 1987 Constitution also envisions education as a tool for attaining the
goals of social justice, unity, freedom, and prosperity. It wants to make education a
tool of development as evidenced by its various provisions restating its commitment
to national development. Art. II, Section 17 of the 1987 Constitution states that
The State shall give priority to education, science and technology, arts, culture, and
sports to foster patriotism and nationalism, accelerate social progress, and promote
total human liberation and development. It seeks to make education a tool of equality
and social justice making it free and accessible. This shows that the 1987 Constitution
regards education as a tool to achieve its aspiration to create a society of responsible,
productive, self-fulfilling and patriotic citizens. It also intends to use education as an
instrument of peace through the equalization of the socio-economic forces and the
prevention of social division among the people.
In fact, free public education is an attempt to narrow the gap between the rich
and the poor. It has been enhanced with the enactment of Republic Act No. 6655 on
26 May 1988, providing for the Free Public Secondary Education Act of 1988. It
specifically mandated free public secondary education commencing in the school
year 1988-1989. It was followed by the passage of Republic Act No. 7323 on 03
February 1992, which provided that students aged 15 to 25 may be employed during
summer or Christmas vacation with a salary not lower than the minimum wage.
Sixty percent (60%) of the wage is to be paid by the employer and 40% by the
government. The government has implemented the trifocal system of education with
the firm belief that it will improve universal access to quality education and the poor
public governance in the Philippine educational system.
The trifocal system of education in the Philippines had its impetus on the
Congressional Commission on Education (EDCOM) dated December 28, 1991,
entitled Making Philippine Education Work: An Agenda for Reform, specifically
recommending the division of DECS into three agencies because of its findings on
the declining state of the Philippine education system brought about by poor public
governance, among other reasons. It found out that the quality of Philippine education
is declining continuously as evidenced by the following observations:
(1) Our elementary and high schools are failing to teach the competence
the average citizen needs to become responsible, productive and self-
fulfilling;
(2) Colleges and technical/vocational schools are not producing the
manpower we need to develop our economy; and
(3) Graduate education is mediocre. It does not generate the research-
based knowledge we need to create more jobs and to raise the value of
production.
According to the EDCOM Report, the two main reasons for the decline of
Philippine education are (1) that we are not simply investing enough in our educational
system, and (2) that our education establishments are poorly managed. The Philippines
was then beset with restraining trends such as low performance of students, short
investment in education, lack of policy direction in education, poor public and private
education governance, etc. In line with this, the trifocal system of education was put
in place through various legislations and policies.
First, on May 18, 1994, Congress passed Republic Act No. 7722, the Higher
Education Act of 1994, creating the Commission on Higher Education (CHED),
which assumed the functions of the Bureau of Higher Education and the supervision
of tertiary degree programs. Second, on August 25, 1994, Congress passed Republic
Act No. 7796, the Technical Education and Skills Development Act of 1994, which
created the Technical Education and Skills Development Authority (TESDA), which
absorbed the Bureau of Technical-Vocational Education plus the National Manpower
and Youth Council. TESDA supervises non-degree technical-vocational programs.
DECS retained responsibility for all elementary and secondary education. Third, in
August 2001, Congress passed Republic Act No. 9155, otherwise called the
Governance of Basic Education Act, which renamed the Department of Education,
Culture and Sports (DECS) as the Department of Education (DepEd) and redefined
the role of field offices (regional offices, division offices, district offices, and schools).
RA 9155 provides the overall framework for (1) school head empowerment by
strengthening their leadership roles and (2) school-based management within the
context of transparency and local accountability. The goal of basic education is to
provide the school-age population and young adults with skills, knowledge, and values
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to become caring, self-reliant, productive and patriotic citizens. It redefines the
roles of field offices (regional, division, district and schools). It also affirms free and
compulsory education for children aged 7 to 12 years old, free but not compulsory
for children aged 13 to 16 years old.
Thus, the Philippine education system has been trifocalized since 1994,
with the DECS, TESDA and CHED respectively administering the basic
education, technical and vocational education and training (TVET), and higher
education (HE).
Challenges and Prospects
The Philippines has been implementing a trifocal system of education for
about two decades now. This is the right time to re-visit this system to correct its
flaws because of the fact that it has not adequately addressed the issues and concerns
of the Philippine education since its inception. The Philippines is now off-track
with respect to its education commitments under the UN Millennium Declaration.
Its goals to promote quality and excellence, to improve equal access to education,
and to make human resource globally competitive remain to be seen. Evidently, the
trifocal system of education has systematically failed to provide students with the
necessary competence, skills, and preparation from basic education to post-secondary
education. With this system, the government thus fails to achieve its mandate to
make quality education accessible to all.
The foundation of post-secondary education is basic education. We can only
have quality education when we have good basic education. For this reason, CHED
Chairperson Emmanuel Y. Angeles identified some pressing issues and concerns in
education and proposed an action plan for the Philippine main education highway.
In his paper presented during the Congressional Sub-Committee Budget Hearing
held on September 22, 2008, at the Andaya Hall, South Wing, Batasan Complex,
entitled Higher Education for Global Competitiveness: Towards the New Higher
Education Highway, Chairman Angeles presented the following urgent issues and
concerns affecting the Philippine educational system: (1) preparation for college work,
(2) cohort survival rate, (3) performance in the licensure examinations, (4)
accreditation, (5) faculty qualifications, (6) mismatch, (7) access and equity, and (8)
government investment in education. He provided the following information in his
paper:
First reason why our educational system has not achieved what it
must is the length of basic education, which is only ten years compared to
the 12-year international standard; other 9 countries in ASEAN region
have at least 12 years of basic education. The Philippines is thus the only
country in the ASEAN region that has a 10-year basic education. This
will surely affect our professionals for it would be very difficult for them
to find jobs abroad because of the lacking required number of years in
education. Chairman Angeles thus suggested that we have to devote the
first two years of college in augmenting the inadequate preparation of
the high school graduates for college work.
Second is the alarming drop-out rate. Statistics show that only 66
out of 100 students who enter first grade will finish Grade 6, only 58 of
this 66 will continue with high school; 43 of this 58 who enter high school
will finish high school; and only 14 of 43 high school graduates will
graduate in college. Chairman Angeles saw the urgent need for bridging
the gap in the pupils preparedness for college work and ensuring
acceptability of our professional graduates in the international/regional
markets.
Third is the poor performance of college graduates in the licensure
examinations. Data for the year 2007 show that the passing rate of students
in the licensure examinations is only 38.72%. Chairman Angeles noted
that only the Science discipline cluster has more than 50% cut-off,
specifically 53% passing rate. Sadly, teacher education has a passing rate
of only 28.28%. It means that only 28 out of 100 graduates of teacher
education passed the 2007 licensure examinations for teachers.
Fourth is the dismal state of accreditation in the country. At present,
there are about 1,726 higher education institutions. Of this, 203 (12%)
are public higher education institutions (PubHEIs) and 1,523 (88%) are
private higher education institutions (PriHEIS). Of the 203 PubHEIs,
110 are state universities and colleges, 77 are local universities and colleges,
and 16 are other government schools. Of the 1,523 PriHEIs, 1,262 are
nonsectarian and 261 are sectarian. Again, 2007 data show that PubHEIs
have 877,712 students; while PriHEIs have 1,687,822 students,
respectively comprising 34% and 66% of 2,565,534 students enrolled for
the year. Chairman Angeles observed that only 388 HEIs have achieved
standards over the minimum requirements of CHED and the rest more
than 1,300 (81%) are either just complying with the minimum standards
or have not bothered to get their programs accredited.
Fifth is the lack of qualified faculty for higher education programs.
The minimum requirement for higher education faculty is at a least
masters degree. CHED data show that for AY 2007-2008, only 9.65% of
HEIs faculty have doctoral degrees and 32.33% have masters degrees.
Statistics for the previous academic years are almost the same, ranging
from 9% to 10% (with PhD) and 31% to 34% (with MA/S). This demands
nothing more than a comprehensive faculty development program for
HEIs.
Sixth is the mismatch between education and manpower requirements
of the country. HEIs are producing more than 147,000 graduates every
year. However, most of them cannot find jobs within three years after
164 IBP JOURNAL
Rustico T. De Belen
graduation because their competence and skills do not match the industries
manpower requirements. Chairman Angeles noted that wanting is the
communication skills needed in the business processing and outsourcing
(BPO) industry. He also said that the graduates proficiency in English
and Math as well as skills in the use/application of the latest technologies
are quite inadequate, if not totally lacking.
Seventh is access and equity in education. Education is always
accessible for the rich, and not for the poor. Thus, when access to
education is unfair, equity need not be overemphasized. Poverty has been
a hindrance for most people to have access to quality education. For this
reason, Chairman Angeles requested from Congress an additional budget
to assist more poor and deserving students and improve access to quality
education through scholarship grants and other forms of financial
assistance.
Eighth and last is the inadequate government investment in education.
Compared with other Asian neighbors, the Philippines is lagging behind
in terms of spending in education vis--vis the percentage of Gross Domestic
Product (GDP). The total education budgets share under the General
Appropriations Act has been declining (19% in 1999 and a little over 11%
in 2008 (See Philippine Daily Inquirer (PDI), 1/30/2010). Citing Wallace
reports, the PDI also reported that Our countrys Education budget is
only between 2 percent to 2.5 percent of the countrys GDP, lower than
the 4 percent to 5 percent recommended by UNESCO; Major East Asian
economies allot 5 percent to 6 percent. The Philippines spends the least
in educating its kids ($318 per child vs. Thailands $1,048) (id.). The bulk
of government budget to education goes to basic education (more than
P150 billion).
On top of this, the 2010 Education for All report states that Education
indicators for the Philippines are below what might be expected for a country at its
income level and that extreme economic inequalities fuel education inequalities by
pushing many children out of school and into employment. With those alarming
issues and concerns, it is time for the government to take decisive actions. The focus
of the government to allocate more funds to TESDA, with more than P3M budget
compared to CHED budget of about P1.5M (P1,587,096,000.00 for FY 2008, to be
exact) may be misplaced. We cannot be a country of voc-tech people because we need
to give opportunity for these people to improve their competence and skills and
advance their career. We need to make up for the two-year deficit in basic education.
And we need to harmonize our policies in post-secondary education to make it
effective, cost-efficient and sustainable.
It is true that it is very expensive for the government to add two more years
for Philippine basic education to make it at par with the 12-year international
standard. This issue has to be addressed in the post-secondary education, if not in
the basic education sector. The 2-year deficiency in basic education can be corrected
by adjusting the post-secondary education to prepare high school graduates for college
work. Specifically, one suggestion is to add another two years as preparatory course
for college education, also called the pre-college bridging program. The public will
surely oppose this because this means additional expenses for them, and more,
suspect that this is another scheme for private education institutions to profit more.
We must be reminded that education teaches us that change is inevitable. In the
process, it calls for critical evaluation and skeptical scrutiny of any change in education
policy.
CHED Chairman Angeles proposed a multi-track education system to make
up for the 2-year deficit in basic education. This system will require the students
graduating from high school to take aptitude tests to serve as basis for their
classification into two groups: (1) those who will go to the pre-college or technical-
vocational education and training (TVET) track; and (2) those who will go direct to
the college/university track (HE track). This setup needs a well-developed and credible
testing and evaluation to effectively determine the competence, skills and
preparedness of high school graduates for admission in either the TVET or HE
tract.
Be that as it may, Philippine post-secondary education must address the needs
of the industry without depriving our people the opportunity to further their
professional education. The above issues and concerns are more than enough for
our education policy-makers and legislators to review the Philippine educational
system and develop a more responsive, effective, cost-efficient and sustainable system.
In basic education, the DepEd can ensure the continuity and sustainability of
elementary and secondary education in terms of programs and policies. The post-
secondary education demands a similar setup to harmonize and make post-secondary
education globally competitive, thus suggesting the merging of TESDA with CHED
to form one higher education department. CHED is too small (in terms of manpower
and resources) for too many clientele (students, institutions, faculty, etc.); while
TESDA is too big for its limited clientele. The proposed system will reduce
bureaucratic red-tape, save money, and ensure the continuity, efficiency and
sustainability of post-secondary education.
In the final analysis, with the lessons learned from the trifocal system of
education, this is the time to correct it to promote quality and excellence, and improve
access to education, and address the manpower needs of the country in a more
effective, cost-efficient and sustainable manner. This can be done by instituting a
dual system of education, with DepEd to maintain its supervision on basic education
consisting of two stages, i.e., elementary education and secondary education, and a
higher education department to assume jurisdiction over post-secondary education
consisting of two tracks, i.e., TVET tract and HE track. This proposed system of
education could ensure the successful completion of education from basic to higher
education, enabling every citizen to get what they truly deserve accessible, affordable
and acceptable quality education.
166 IBP JOURNAL
Rustico T. De Belen
References
Angeles, Emmanuel Y. Higher Education for Global Competitiveness: Towards the
New Higher Education Highway. Quezon City: Commission on Higher Education, Office
of the President, 2008.
CHED Action Plan 2009-2010 on the Philippine Main Education Highway.
Quezon City: Commission on Higher Education, Office of the President, 2009
De Belen, Rustico T. Laws on Indigenous Peoples: Implications to
Peace Process. Unpublished Dissertation, Bicol Universisty Graduate School, 2003.
Elevazo, Aurelio O. and Elevazo, Rosita A. Philosophy of Philippine
Education. Mandaluyong City: National Book Store, 1995.
Guerrero, Milagros; Encarnacion, Emmanuel; and Villegas, Ramon. Andres
Bonifacio and the 1896 Revolution. Sulyap Kultura: National Commission for
Culture and the Arts, 1996.
Guerrero, Milagros and Schumacher, S.J., John. Reform and Revolution,
Kasaysayan: The History of the Filipino People. Asia Publishing Company
Limited, 1998.
Jocano, F Landa. Filipino Prehistory: Rediscovering the Precolonial
Heritage. Manila: Punlad Research House, Inc., 1998.
Scott, William Henry (1). Prehispanic Source Materials for the Study of
Philippine History. Manila: University of Santo Tomas Press, 1968.
(2).Barangay, Sixteenth-Century Philippine Culture and Society. Quezon City:
Ateneo de Manila University Press, 1994. 4th printing, 1999.
Tiongson, Jaime F. Laguna Copperplate Inscription: A New
Interpretation Using Early Tagalog Dictionaries, Paper presented at the 8th
International Conference on Philippines studies, July 23-2006, 2008, PSSC, Quezon
City.
Tulio, Doris D. Foundations of Education 2. Mandaluyong City: National
Book Store, 2008.

MA. MILAGROS N. FERNAN-CAYOSA
Governor for Northern Luzon
FERDINAND Y. MICLAT
Governor for Central Luzon
AMADOR Z. TOLENTINO, JR.
Governor for Southern Luzon
JOSE V. CABRERA
Governor for Bicolandia
ROLAND B. INTING
Governor for Eastern Visayas
ROAN I. LIBARIOS
Governor for Eastern Mindanao
NATIONAL OFFICERS
(July 2009 - June 2011)
JUSTICE SANTIAGO M. KAPUNAN (Ret.)
Officer-in-Charge
ROSARIO T. SETIAS-REYES
National Director for Legal Aid
ALICIA A. RISOS-VIDAL
National Director for Bar Discipline
DEAN PACIFICO A. AGABIN
General Counsel
RODOLFO G. URBIZTONDO
Deputy General Counsel & Chief of Staff
TOMAS N. PRADO
National Secretary
ESTER SISON CRUZ
National Treasurer
JAIME M. VIBAR
National Executive Director
MARIA TERESITA C. SISON GO
Assistant National Treasurer
15 J. Vargas Avenue, Ortigas Center, Pasig City 1600
Telephone: (632) 631-3014/18 Fax: (632) 634-4697
Website: www.ibp.org.ph Email: journal@ibp.org.ph
BOARD OF GOVERNORS
(2009-2011)
JUSTICE SANTIAGO M. KAPUNAN (Ret.)
Officer-in-Charge
OLIVER B. SAN ANTONIO
Public Relations Officer

IBP Journal Vol.35 - No.1 - 2010

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