Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 169838 April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr.,
Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National
Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO
BULAONG, Respondents.

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

G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo
Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious
Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny
Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES, in his
official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as the Chief,
Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office
(NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC
OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND
INSTRUCTIONS, Respondents.

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

G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and
ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO
ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838, 1 allege that they are citizens and taxpayers of the Philippines and that their
rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by
policemen implementing Batas Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were injured,
arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the
police. They further assert that on October 5, 2005, a group they participated in marched to Malacaang to protest issuances of the
Palace which, they claim, put the country under an "undeclared" martial rule, and the protest was likewise dispersed violently and many
among them were arrested and suffered injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass actions
and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are
affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked
them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further
allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along Espaa Avenue in
front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and
prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them. 4 Three other rallyists were
arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as
the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy recently
announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For
Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title. This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. The constitutional right of the people peaceably to assemble and petition the government for redress of
grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such
right without prejudice to the rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted
action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any
particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the
government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed
by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully
observed.

The definition herein contained shall not include picketing and other concerted action in strike areas by workers and
employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the
Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square,
and/or any open space of public ownership where the people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities
shall observe during a public assembly or in the dispersal of the same.

(d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the parade or
street march, the volume of loud-speakers or sound system and similar changes.

Sec. 4. Permit when required and when not required. A written permit shall be required for any person or persons to organize and
hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a
freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled
to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject
to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as
provided for by law are not covered by this Act.

Sec. 5. Application requirements. All applications for a permit shall comply with the following guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public
assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable
number of persons participating, the transport and the public address systems to be used.
 (b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity
is to be held, at least five (5) working days before the scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall
cause the same to immediately be posted at a conspicuous place in the city or municipal building.

Sec. 6. Action to be taken on the application.

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and
convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public
convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the
application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting
in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of
the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the
applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-
eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such
permit or modifying it in terms satisfactory to the applicant shall be immediately executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. Should the proposed public assembly involve the use, for an appreciable length of time, of any
public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.

Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all
reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the
terms of the permit. These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit;|avvphi|.net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the
public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held
peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other
persons not participating in the public assembly.
Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public
assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain
peace and order at all times.

Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested
by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies
shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their
nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of "maximum tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot
sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is
attended by actual violence or serious threats of violence, or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly
becomes violent, the police may disperse such public assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the
leaders of the public assembly and ask the latter to prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at
the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent
shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after
allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during
the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised
Penal Code, as amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for
dispersal.

Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required,
the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that
written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place
other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for
participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other
official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any
official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public
assembly;

(f) Acts in violation of Section 10 hereof;

 (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or
on the occasion thereof:

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its
horns and loud sound systems.

Sec. 14. Penalties. Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding section
shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six
months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without
prejudice to prosecution under Presidential Decree No. 1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days.

Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally
located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six
months from the effectivity this Act.

Sec. 16. Constitutionality. Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the
other provisions shall not be affected thereby.

Sec. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are
inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly.

Sec. 18. Effectivity. This Act shall take effect upon its approval.

Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21, 2005, shown in Annex "A" to the
Petition in G.R. No. 169848, thus:

Malacaang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and
incite people against the duly constituted authorities, we have instructed the PNP as well as the local government units to strictly
enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land
as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while
those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and
the peace of mind of the national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive
government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.

The Presidents call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant
on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a
clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and
place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does
not apply to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or influencing" suggest the
exposition of some cause not espoused by the government. Also, the phrase "maximum tolerance" shows that the law applies to
assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny
test.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully
assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes
public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.

Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and
present danger and imminent and grave danger) are inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880,
aside from being void for being vague and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put
the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are
unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too
comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly,
otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act,
and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No.
880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble.

Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of
the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief,
PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity;Angelo Reyes, as
Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as
Chief, MPD, and all other public officers and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the
Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or detained
because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880 and other
offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner
regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is content-
neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
 governmental interest, i.e., the interest cannot be equally well served by a means that is less intrusive of free speech interests;
and (c) B.P. No. 880 leaves open alternative channels for communication of the information.6

3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the public assemblys
time, place and manner of conduct. It entails traffic re-routing to prevent grave public inconvenience and serious or undue
interference in the free flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on
the basis of a rallys program content or the statements of the speakers therein, except under the constitutional precept of the
"clear and present danger test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v.
Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding public
assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial governmental
interest to support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police power to
meet "the demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the discretion
given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or public health" and "imminent and
grave danger of a substantive evil" both express the meaning of the "clear and present danger test."10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest
and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active and dynamic enforcement
of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance
in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be dismissed on
the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his denials of
permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of
requiring a permit; that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a
content-based regulation because it covers all rallies.

The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the cases for
oral arguments on April 4, 2006,14 stating the principal issues, as follows:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic
Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal Declaration of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?

During the course of the oral arguments, the following developments took place and were approved and/or noted by the Court:
 1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual
issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September
20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term
inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a
misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum
tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the foregoing developments.

Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of
petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly
assemble in the nations streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional guarantee. Respondents, on the other
hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech,
of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very
basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v.
CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already upheld the right to assembly and petition, as follows:

There is no question as to the petitioners rights to peaceful assembly to petition the government for a redress of grievances and, for
that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities.
These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the peoples exercise
of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition
and even went as far as to acknowledge:

"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether
real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance
and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd
as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and
to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited
punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of
disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion
must be exercised in drawing the line betweendisorderly and seditious conduct and between an essentially peaceable assembly and a
tumultuous uprising."

Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and petition over
comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle
growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it
shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The
power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to
prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This
sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and
other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the purpose.18

Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom
of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of
public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless
there be a "clear and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly
connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to
be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case
with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior
to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority
of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of
the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety,
public morals, public health, or any other legitimate public interest.

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this
excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for
gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose
its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or
printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this
the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved
or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the
dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable
assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to
be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise,
United States v. Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears repeating that for the constitutional right to be invoked, riotous
conduct, injury to property, and acts of vandalism must be avoided. To give free rein to ones destructive urges is to call for
condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of
Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has,
from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on national questions may be regulated in the interest
of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be abridged or denied." The above excerpt
was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a
1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and
thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a
promenade for public use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason
why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at
the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso
of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared:
"Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case,
the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from
licensing committee, was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that a statute requiring
persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not
 an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed
by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time,
place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. "Nor
should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself
would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure
the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil
liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of
travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of
highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the
attempted exercise of some civil right which in other circumstances would be entitled to protection."

xxx

6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if
the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is
held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects." There could be danger to public peace and safety if such a gathering were
marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held
accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or
not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the
assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place."

xxx

8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the
public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for
the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants
must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and peaceable
assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary, -- even more so than on the other departments rests the grave and delicate
responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they
do precedence and primacy. x x x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a permit to hold
an assembly should inform the licensing authority of the
date, the public placewhere and the time when it will take
place. If it were a private place, only the consent of the
owner or the one entitled to its legal possession is required.
Such application should be filed well ahead in time to
enable the public official concerned to appraise whether
Sec. 4. Permit when required and when not required.-- A
written permit shall be required for any person or persons to
organize and hold a public assembly in a public place.
However, no permit shall be required if the public assembly
shall be done or made in a freedom park duly established
by law or ordinance or in private property, in which case
only the consent of the owner or the one entitled to its legal
possession is required, or in the campus of a government-
owned and operated educational institution which shall be
subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any
election campaign period as provided for by law are not
there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and
present danger test be the standard for the decision
reached. If he is of the view that there is such an imminent
and grave danger of a substantive evil, the applicants must
be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority.
covered by this Act.
Sec. 5. Application requirements.-- All applications for a
permit shall comply with the following guidelines:
(a) The applications shall be in writing and shall
include the names of the leaders or organizers; the
purpose of such public assembly; the date, time
and duration thereof, and place or streets to be
used for the intended activity; and the probable
number of persons participating, the transport and
the public address systems to be used.
(b) The application shall incorporate the duty and
responsibility of applicant under Section 8 hereof.
(c) The application shall be filed with the office of
the mayor of the city or municipality in whose
jurisdiction the intended activity is to be held, at
least five (5) working days before the scheduled
public assembly.
(d) Upon receipt of the application, which must be
duly acknowledged in writing, the office of the city
or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in
the city or municipal building.
Sec. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any official
acting in his behalf to issue or grant a permit
unless there is clear and convincing evidence that
the public assembly will create a clear and present
danger to public order, public safety, public
convenience, public morals or public health.
(b) The mayor or any official acting in his behalf
shall act on the application within two (2) working
days from the date the application was filed, failing
which, the permit shall be deemed granted. Should
for any reason the mayor or any official acting in
his behalf refuse to accept the application for a
permit, said application shall be posted by the
applicant on the premises of the office of the mayor
and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent
and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall
immediately inform the applicant who must be
heard on the matter.
(d) The action on the permit shall be in writing and
served on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf
denies the application or modifies the terms
thereof in his permit, the applicant may contest the
decision in an appropriate court of law.
 (f) In case suit is brought before the Metropolitan
Trial Court, the Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions may be
appealed to the appropriate court within forty-eight
(48) hours after receipt of the same. No appeal
bond and record on appeal shall be required. A
decision granting such permit or modifying it in
terms satisfactory to the applicant shall be
immediately executory.

(g) All cases filed in court under this section shall

be decided within twenty-four (24) hours from date
of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to

the Supreme Court.

(i) Telegraphic appeals to be followed by formal

appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time,
place and manner of the assemblies. This was adverted to in Osmea v. Comelec,20 where the Court referred to it as a "content-neutral"
regulation of the time, place, and manner of holding public assemblies.21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use public
places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes,
otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the
definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of
grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection
and benefit of all rallyists and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public
convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29

1. Everyone has duties to the community in which alone the free and full development of his personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely
for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be defined. Its
ordinary meaning is well-known. Websters Dictionary defines it, thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x x.

Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other
form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a
clear and present danger of the substantive evils Congress has the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and present danger test
stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing
and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where
no prior permit is needed for peaceful assembly and petition at any time:

Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally
located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six
months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park Fuente
Osmea.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.

If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality set aside a freedom park within six
months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for
granted amidst the swell of freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the laws system of regulation of the peoples exercise of
their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision,
no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or
municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to
deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should
now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated
in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum
tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other peacekeeping
authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in
the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding
rallies thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence
under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies
to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons
may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the dispersal
and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how
peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with
the view to preempting the outbreak of violence.

16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring
to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the
public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously
threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to
the letter. Thus I said, "we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . .
. arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads with the
letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to
violate any law.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means
the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that
mandated by the law itself, namely, maximum tolerance, which specifically means the following:

Sec. 3. Definition of terms. For purposes of this Act:

xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.

xxx

Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public
assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain
peace and order at all times.

Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested
by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of expression is primordial.1avvphil.net Towards this end, law
enforcement agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their
nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of "maximum tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot
sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is
attended by actual violence or serious threats of violence, or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly
becomes violent, the police may disperse such public assembly as follows:
 (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the
leaders of the public assembly and ask the latter to prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at
the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent
shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after
allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during
the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised
Penal Code, as amended;

(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for
dispersal.

xxx

Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required,
the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the
occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound
systems.

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and
when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a
necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can,
after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being
then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in
which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and
freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of
our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the
government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that
restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected
toheightened scrutiny."26

For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a
darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand,
B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of
public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of
rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the
constitutionally-sound "clear and present danger" standard.

In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within
which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in
accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed
freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written
notices to the police and the mayors office to allow proper coordination and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local
Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880
through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country.
After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to
exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied
with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu
of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and toSTRICTLY OBSERVE the
requirements of maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa
No. 880 is SUSTAINED.

No costs.

SO ORDERED.

ADOLFO S. AZCUNA
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 108310 September 1, 1994

RUFINO O. ESLAO, in his capacity as President of Pangasinan State University, petitioner,

vs.
COMMISSION ON AUDIT, respondent.

Mehol K. Sadain for petitioner.

FELICIANO, J.:

In this Petition for Certiorari, Rufino O. Eslao in his capacity as President of the Pangasinan State University ("PSU") asks us to set
aside Commission on Audit ("COA") Decisions Nos. 1547 (1990) and 2571 (1992) which denied honoraria and per diems claimed under
National Compensation Circular No. 53 by certain PSU personnel including petitioner.
On 9 December 1988, PSU entered into a Memorandum of Agreement ("MOA") 1 with the Department of Environment and Natural
Resources ("DENR") for the evaluation of eleven (11) government reforestation operations in Pangasinan. 2 The evaluation project was
part of the commitment of the Asian Development Bank ("ADB") under the ADB/OECF Forestry Sector Program Loan to the Republic
of the Philippines and was one among identical project agreements entered into by the DENR with sixteen (16) other state universities.
On 9 December 1988, a notice to proceed 3 with the review and evaluation of the eleven (11) reforestation operations was issued by the
DENR to PSU. The latter complied with this notice and did proceed.

On 16 January 1989, per advice of the PSU Auditor-in-Charge with respect to the payment of honoraria and per diems of PSU
personnel engaged in the review and evaluation project, PSU Vice President for Research and Extension and Assistant Project
Director Victorino P. Espero requested the Office of the President, PSU, to have the University's Board of Regents ("BOR") confirm the
appointments or designations of involved PSU personnel including the rates of honoraria and per diems corresponding to their specific
roles and functions. 4
The BOR approved the MOA on 30 January 1989 5 and on 1 February 1989, PSU issued Voucher No. 8902007 6representing the
amount of P70,375.00 for payment of honoraria to PSU personnel engaged in the project. Later, however, the approved honoraria rates
were found to be somewhat higher than the rates provided for in the guidelines of National Compensation Circular ("NCC") No. 53.
Accordingly, the amounts were adjusted downwards to conform to NCC No. 53. Adjustments were made by deducting amounts from
subsequent disbursements of honoraria. By June 1989, NCC No. 53 was being complied with. 7

On 6 July 1989, Bonifacio Icu, COA resident auditor at PSU, alleging that there were excess payments ofhonoraria, issued a "Notice of
Disallowance" 8 disallowing P64,925.00 from the amount of P70,375.00 stated in Voucher No. 8902007, mentioned earlier. The resident
auditor based his action on the premise that Compensation Policy Guidelines ("CPG") No. 80-4, dated 7 August 1980, issued by the
Department of Budget and Management which provided for lower rates than NCC No. 53 dated 21 June 1988, also issued by the
Department of Budget and Management, was the schedule for honoraria and per diems applicable to work done under the MOA of 9
December 1988 between the PSU and the DENR.
On 18 October 1989, a letter 9 was sent by PSU Vice President and Assistant Project Director Espero to the Chairman of the COA
requesting reconsideration of the action of its resident auditor. In the meantime, the Department of Budget and Management ("DBM"),
upon request by PSU, issued a letter 10 clarifying that the basis for the project's honoraria should notbe CPG No. 80-4 which pertains to
locally funded projects but rather NCC No. 53 which pertains to foreign-assisted projects. A copy of this clarification was sent to the
COA upon request by PSU.
On 18 September 1990, COA Decision No. 1547 11 was issued denying reconsideration of the decision of its resident auditor. The COA
ruled that CPG. No. 80-4 is the applicable guideline in respect of the honoraria as CPG No. 80-4 does not distinguish between projects
locally funded and projects funded or assisted with monies of foreign-origin.

PSU President Eslao sent a letter 12 dated 20 March 1991 requesting reconsideration of COA Decision No. 1547 (1990) alleging that (a)
COA had erred in applying CPG No. 80-4 and not NCC No. 53 as the project was foreign-assisted and (b) the decision was
discriminatory honoraria based on NCC No. 53 having been approved and granted by COA resident auditors in two (2) other state
universities engaged in the same reforestation project. PSU then submitted to the COA (a) a certification 13 from the DENR to the effect
that the DENR evaluation project was foreign- assisted and (b) the letter of the DBM quoted in the margin supra.

On 16 November 1992, COA Decision No. 2571 (1992) 14 was issued denying reconsideration.

In the meantime, in December 1990, the DENR informed petitioner of its acceptance of the PSU final reports on the review and
evaluation of the government reforestation projects. 15 Subsequently, honoraria for the period from January 1989 to January 1990 were
disbursed in accordance with NCC No. 53. A Certificate of Settlement and Balances (CSB No. 92-0005-184 [DENR]) 16 was then issued
by the COA resident auditor of PSU showing disallowance of alleged excess payment of honoraria which petitioner was being required
to return.

The instant Petition prays that (a) COA Decision Nos. 1547 (1990) and 2571 (1992) be set aside; (b) the COA be ordered to pass in
audit the grant of honoraria for the entire duration of the project based on the provisions and rates contained in NCC No. 53; and (c) the
COA be held liable for actual damages as well as petitioner's legal expenses and attorney's fees.

The resolution of the dispute lies in the determination of the circular or set of provisions applicable in respect of the honoraria to be paid
to PSU personnel who took part in the evaluation project, i.e., NCC No. 53 or CPG No. 80-4.

In asserting that NCC No. 53 supplies the applicable guideline and that the COA erred in applying CPG No. 80-4 as the pertinent
standard, petitioner contends that:

(a) CPG No. 80-4 applies to "special projects" the definition and scope of which do not embrace the evaluation project
undertaken by petitioner for the DENR;

(b) NCC No. 53 applies to foreign-assisted projects ("FAPs") while CPG No. 80-4 applies to locally-funded projects as no
reference to any foreign component characterizing the projects under its coverage is made;

(c) the DENR evaluation project is a foreign-assisted project per certification and clarification of the DENR and DBM
respectively as well as the implied admission of the COA in its Comment; and

(d) the DBM's position on the matter should be respected since the DBM is vested with authority to (i) classify positions and
determine appropriate salaries for specific position classes, (ii) review the compensation benefits programs of agencies and
(iii) design job evaluation programs.

The Office of the Solicitor General, in lieu of a Comment on the Petition, filed a Manifestation 17 stating that (a) since, per certification of
the DENR and Letter/Opinion of the DBM that the project undertaken by PSU is foreign-assisted, NCC No. 53 should apply; and (b)
respondent COA's contention that CPG No. 80-4 does not distinguish between projects which are foreign-funded from locally-funded
projects deserves no merit, since NCC No. 53, a special guideline, must be construed as an exception to CPG No. 80-4, a general
guideline. The Solicitor General, in other words, agreed with the position of petitioner.

Upon the other hand, respondent COA filed its own comment, asserting that:

(a) while the DBM is vested with the authority to issue rules and regulations pertaining to compensation, this authority
is regulated by Sec. 2 (2) of Art. IX-D of the 1987 Constitution which vests respondent COA with the power to
"promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of
irregular, unnecessary, excessive, extravagant or unconscionable expenditures, or uses of government funds and
properties;

(b) the Organizational Arrangement and Obligations of the Parties sections of the MOA clearly show that the
evaluation project is an "inter-agency activity" between the DENR and PSU and therefore a "special project";
 (c) the issue as to whether the evaluation project is in fact a "special project" has become moot in view of the DBM's
clarification/ruling that the evaluation project is foreign-assisted and therefore NCC No. 53, not CPG No. 80-4 which
applies only to locally-funded projects, should apply;

(d) the DBM issuance notwithstanding, respondent COA applied CPG No. 80-4 to effectively rationalize the rates of
additional compensation assigned to or detailed in "special projects" as its application is without distinction as to the
source of funding and any payment therefore in excess of that provided by CPG No. 80-4 is unnecessary, excessive
and disadvantageous to the government;

(e) respondent COA's previous allowance of payment of honoraria based on NCC No. 53 or the fact that a full five
years had already elapsed since NCC No. 53's issuance does not preclude COA from assailing the circular's validity
as "it is the responsibility of any public official to rectify every error he encounters in the performance of his function"
and "he is not duty- bound to pursue the same mistake for the simple reason that such mistake had been
continuously committed in the past";

(f) the DBM ruling classifying the evaluation project as foreign-assisted does not rest on solid ground since loan
proceeds, regardless of source, eventually become public funds for which the government is accountable, hence, any
project under the loan agreement is to be considered locally-funded;

(g) the DBM ruling constitutes an unreasonable classification, highly discriminatory and violative of the equal
protection clause of the Constitution; and

(h) granting arguendo NCC No. 53 is the applicable criterion, petitioner received honoraria in excess of what was
provided in the MOA.

We consider the Petition meritorious.

Sec. 2.1 of CPG No. 80-4 defines "special project" as

an inter-agency or inter-committee activity or an undertaking by a composite group of officials/employees from

various agencies which [activity or undertaking] is not among the regular and primary functions of the agencies
involved. (Emphasis and brackets supplied)

Respondent COA maintains that the sections of the MOA detailing the "Organizational Arrangement and Obligations of the Parties"
clearly show that the evaluation project is an "inter-agency activity." The pertinent sections of the MOA are as follows:

ORGANIZATIONAL ARRANGEMENTS

A Coordinating Committee shall be created which shall be responsible for the overall administration and coordination
of the evaluation, to be chaired by a senior officer of the DENR. The Committee shall [be] composed [of] the
following:

Chairman : Undersecretary for Planning,

Policy and Project Management
[DENR]

Co-Chairman : Vice-President for Research

and Development [PSU]

Members : Director of FMB

Dean, PSU Infanta Campus
Associate Dean, PSU Infanta
Campus
Chief, Reforestation
Division
Project Director of the ADB
Program Loan for Forestry
Sector
 OBLIGATIONS OF THE PARTIES

Obligations of DENR:

The DENR shall have the following obligations:

1. Provide the funds necessary for the review and reevaluation of eleven (11) reforestation projects.

xxx xxx xxx

2. Undertake the monitoring of the study to ascertain its progress and the proper utilization of funds in conformity with
the agreed work and financial plan.

3. Reserve the right to accept or reject the final report and in the latter case, DENR may request PSU to make some
revisions/modifications on the same.

Obligations of the PSU:

The PSU shall have the following obligations:

1. Undertake the review and evaluation of the eleven (11) DENR-funded reforestation projects in accordance with the
attached TOR;

2. Submit regularly to DENR financial status reports apart from the progress report required to effect the second
release of funds;

3. Submit the final report to DENR fifteen (15) days after the completion of the work. The report should at least
contain the information which appears in Annex D;

4. Return to DENR whatever balance is left of the funds after the completion of work.

Simply stated, respondent COA argues that since the Coordinating Committee is composed of personnel from the DENR and PSU, the
evaluation project is an "inter-agency activity" within the purview of the definition of a "special project".

We are unable to agree with respondent COA.

Examination of the definition in CPG No. 80-4 of a "special project" reveals that definition has two (2) components: firstly, there should
be an inter-agency or inter-committee activity or undertaking by a group of officials or employees who are drawn from various agencies;
and secondly, the activity or undertaking involved is not part of the "regular or primary" functions of the participating agencies.
Examination of the MOA and its annexes reveals that two (2) groups were actually created. The first group consisted of
the coordinating committee, the membership of which was drawn from officials of the DENR and of the PSU; and the second,
the evaluation project team itself which was, in contrast, composed exclusively of PSU personnel. 18 We believe that the first component
of the CPU No. 80-4's definition of "special project" is applicable in respect of the group which is charged with the actual carrying out of
the project itself, rather than to the body or group which coordinates the task of the operating or implementing group. To construe the
administrative definition of "special project" otherwise would create a situation, which we deem to be impractical and possibly even
absurd, under which any undertaking entered into between the senior officials of government agencies would have to be considered an
"inter-agency or inter-committee activity," even though the actual undertaking or operation would be carried out not by the coordinating
body but rather by an separate group which might not (as in the present case) be drawn from the agencies represented in the
coordinating group. In other words, an "inter-agency or inter-committee activity or . . . undertaking" must be one which is actually carried
out by a composite group of officials and employees from the two (2) or more participating agencies.

As already noted, in the case at hand, the project team actually tasked with carrying out the evaluation of the DENR reforestation
activity is composed exclusively of personnel from PSU; the project team's responsibility and undertaking are quite distinct from the
responsibilities of the coordinating [DENR and PSU] committee. Thus, the project team is not a "composite group" as required by the
definition of CPG No. 80-4 of "special projects." It follows that the evaluation projects here involved do not fall within the ambit of a
"special project" as defined and regulated by CPG No. 80-4.
We do not consider it necessary to rule on whether the project at hand involved an undertaking "which is not among the regular and
primary functions of the agencies involved" since the reforestation activity evaluation group is not, as pointed out above, a "special
project" within the meaning of CPG No. 80-4. In any case, this particular issue was not raised by any of the parties here involved.

It is true, as respondent COA points out, that the provisions of CPG No. 80-4 do not distinguish between "a special project" which is
funded by monies of local or Philippine origin and "a special project" which is funded or assisted by monies originating from
international or foreign agencies. As earlier noted, CPG No. 80-4 was issued by the Department of Budget and Management back in 7
August 1980. Upon the other hand, NCC No. 53 was issued also by the Department of Budget and Management more than eight (8)
years later, i.e., 9 December 1988. Examination of the provisions of NCC No. 53 makes it crystal clear that the circular is applicable to
foreign-assisted projects only. The explicit text of NCC No. 53 states that it was issued to

prescribe/authorize the classification and compensation rates of positions in foreign-assisted projects(FAPs)

including honoraria rates for personnel detailed to FAPs and guidelines in the implementation thereof pursuant to
Memorandum No. 173 dated 16 May 1988 19 (Emphasis supplied)

and which apply to all positions in foreign-assisted projects only. Clearly, NCC No. 53 amended the earlier CPG No. 80-4 by carving out
from the subject matter originally covered by CPG No. 80-4 all "foreign-assisted [special] projects." CPG No. 80-4 was, accordingly,
modified so far as "foreign-assisted [special] projects (FAPs)" are concerned. It is this fact or consequence of NCC No. 53 that
respondent COA apparently failed to grasp. Thus, CPG No. 80-4 does not control, nor even relate to, the DENR evaluation project for at
least two (2) reasons: firstly, the evaluation project was not a "special project" within the meaning of CPG No. 80-4; secondly, that same
evaluation project was a Foreign-Assisted Project to which NCC No. 53 is specifically applicable.

That the instant evaluation project is a Foreign-Assisted Project is borne out by the records: (a) the MOA states that the project is "part
of the commitment with the Asian Development Bank (ADB) under the Forestry Sector Program Loan"; (b) the certification issued by
the DENR certifies that
. . . the review and evaluation of DENR reforestation projects undertaken by State Universities and Colleges, one of
which is Pangasinan State University, is one of the components of the ADB/OECF Forestry Sector Program Loan
which is funded by the loan. It is therefore a
foreign-assisted project (Underscoring supplied); and

(c) the clarification issued by the DBM stating that

The honoraria rates of the detailed personnel should not be based on Compensation Policy Guidelines No. 80-4,
which pertains to locally funded projects. Since the funding source for this activity come from loan proceeds, National
Compensation Circular No. 53 should apply.

Even in its Comment respondent COA submits that

. . . the issue as to whether or not the project was special already became moot in the face of the opinion/ruling of the
DBM that since it (the project) is "foreign-assisted" NCC 53 should apply, for CPG No. 80-4 applies only to "locally-
funded projects. 20

Under the Administration Code of 1987, the Compensation and Position Classification Bureau of the DBM "shall classify positions and
determine appropriate salaries for specific position classes and review appropriate salaries for specific position classes and review the
compensation benefits programs of agencies and shall design job evaluation programs." 21 In Warren Manufacturing Workers Union
(WMWU) v. Bureau of Labor Relations, 22 the Court held that "administrative regulations and policies enacted by administrative bodies
to interpret the law have the force of law and are entitled to great respect." It is difficult for the Court to understand why, despite these
certifications, respondent COA took such a rigid and uncompromising posture that CPG No. 80-4 was the applicable criterion
for honoraria to be given members of the reforestation evaluation project team of the PSU.

Respondent COA's contention that the DBM clarification is unconstitutional as that ruling does not fulfill the requisites of a valid
classification 23 is, in the Court's perception, imaginative but nonetheless an after-thought and a futile attempt to justify its action. As
correctly pointed out by petitioner, the constitutional arguments raised by respondent COA here were never even mentioned, much less
discussed, in COA Decisions Nos. 1547 (1990) and 2571 (1992) or in any of the proceedings conducted before it.

Petitioner also argues that the project's duration stipulated in the MOA was implicitly extended by the parties. The DENR's acceptance,
without any comment or objection, of PSU's (a) letter explaining the delay in its submission of the final project report and (b) the final
project report itself brought about, according to petitioner, an implied agreement between the parties to extend the project duration. It is
also contended that by the very nature of an evaluation project, the project's duration is difficult to fix and as in the case at bar, the
period fixed in the MOA is merely an initial estimate subject to extension. Lastly, petitioner argues that whether the project was impliedly
extended is an inconsequential consideration; the material consideration being that the project stayed within its budget. The project
having been extended, petitioner concludes that the evaluation team should be paidhonoraria from the time it proceeded with the
project and up to the time the DENR accepted its final report.

Mindful of the detailed provisions of the MOA and Project Proposal governing project duration and project financing as regulated by
NCC No. 53, the Court is not persuaded that petitioner can so casually assume implicit consent on the part of the DENR to an
extension of the evaluation project's duration.

The "Duration of Work" clause of the MOA provides that

PSU shall commence the work 10 days from receipt of the Notice to Proceed and shall be completed five months
thereafter. (Emphasis supplied)

On 9 December 1988, the DENR advised PSU President Rufino Eslao that PSU "may now proceed with the review and
reevaluation as stipulated" in the MOA. The Notice to Proceed further stated that

Your institution is required to complete the work within five months starting ten (10) days upon receipt of this notice.
(Emphasis supplied)

In respect of the financial aspects of the project, the MOA provides that

The DENR shall have the following obligations:

1. Provide the funds necessary for the review and reevaluation of the eleven (11) reforestation projects . . . in the
amount not more than FIVE HUNDRED SIX THOUSAND TWO HUNDRED TWENTY FOUR PESOS (P506,224.00)
which shall be spent in accordance with the work and financial plan which attached as Annex C. Fund remittances
shall be made on a staggered basis with the following schedule:

a. FIRST RELEASE

Twenty percent (20%) of the total cost to be remitted within fifteen (15) working days upon submission of work plan;

b. SECOND RELEASE

Forty percent of the total cost upon submission of a progress report of the activities that were so far undertaken;

c. THIRD RELEASE

Thirty percent (30%) of the total amount upon submission of the draft final report;

d. FOURTH RELEASE

Ten percent of the total amount [upon submission] of the final report. (Underscoring supplied)

Annex "C" referred to in the MOA is the Project Proposal. Per the Proposal's "Budget Estimate," P175,000.00 and P92,500.00 were
allotted for "Expert Services" and "Support Services" respectively itemized as follows:

PERSONAL SERVICES
EXPERT SERVICES

Duration

Expert of Service Rate/ Total

(mo.) mo.

1. Ecologist 4 P5,000 P20,000

2. Silviculturist 3 -do- 15,000

3. Forestry Economist 4 -do- 20,000

4. Soils Expert 2 -do- 10,000

5. Social Forestry Expert 4 -do- 20,000

6. Management Expert 2 -do- 10,000

7. Horticulturist 2 -do- 10,000

8. Agricultural Engineer 2 -do- 10,000

9. Systems Analysts/Programer 2 -do- 10,000

10. Statistician 2 -do- 10,000

11. Shoreline Resources Expert 2 -do- 10,000

12. Animal Science Specialist 2 -do- 10,000

13. Policy/Administrative 4 -do- 20,000

Expert

T O T A L P175,000

Support Services

Research Associates (2) P8,000

Honorarium P1,000/mo. for 4 months
Special Disbursing Officer (1) 4,000
Honorarium P1,000/mo. for 4 months
Enumerators/Data Gatheres 36,000
360 mandays at P100/manday
including COLA
Coders/Encoders 30,000
300 mandays at P100/manday
including COLA
Cartographer/Illustrator 5,000
50 mandays at P100/manday
including COLA
Documentalist 4,500
45 mandays at P100/manday
including COLA
Typist 5,000
50 mandays at P100/manday
including COLA
 T O T A L P92,500

In addition, the Proposal already provided a list of identified experts:

EXPERTS

1. Dr. Victorino P. Espero Enviromental Science

2. Dean Antonio Q. Repollo Silviculture
3. Prof. Artemio M. Rebugio Forestry Economics
4. Ms. Naomenida Olermo Soils
5. Dr. Elvira R. Castillo Social Forestry
6. Dr. Alfredo F. Aquino Management
7. Dr. Lydio Calonge Horticulture
8. Engr. Manolito Bernabe Engineering
9. Dr. Elmer C. Vingua Animal Science
10. Prof. Rolando J. Andico Systems Analysts
Programming
11. Dr. Eusebio Miclat, Jr. Statistics/
Instrumentation
12. Dr. Porferio Basilio Shoreline Resources
13. Dr. Rufino O. Eslao Policy Administration

who, together with six (6) staff members namely Henedina M. Tantoco, Alicia Angelo Yolanda Z. Sotelo, Gregoria Q. Calela,
Nora A. Caburnay and Marlene S. Bernebe composed the evaluation project team. At this point, it should be pointed out that
the " Budget Estimate even provides a duration for the participation of each and every person whether rendering expert or
support services.

On the other hand, NCC No. 53 provides:

3.3.1 The approved 0rganization and staffing shall be valid up to project completion except for modifications deemed
necessary by the Project Manager. The Project Manager shall be given the flexibility to determine the timing of hiring
personnel provided the approved man-years for a given position for the duration of the project is not exceeded.

xxx xxx xxx

3.6 A regular employee who may detailed to any FAPs on a part-time basis shall be entitled to receive honoraria in
accordance with the schedule shown in Attachment II hereof.

xxx xxx xxx

3.7 Payment of honoraria shall be made out of project funds and in no case shall payment thereof be made out of
regular agency fund.

xxx xxx xxx

3.10 The total amount of compensation to be paid shall not exceed the original amount allocated for personal
services of the individual foreign-assisted projects. Any disbursement in excess of the original amount allotted for
personal services of the individual projects shall be the personal liability and responsibility of the officials and
employees authorizing or making such payment. (Underscoring supplied)

Attachment II of NCC No. 53 prescribes the monthly rates allowed for officials/employees on assignment to foreign- assisted special
projects:

A. Position Level Project Manager/Project

Director
 Responsibility . . .

Parttime P2,000.00

B. Position Level Assistant Project

Director

Responsibility . . .

Parttime P1,500.00

C. Position Level Project Consultant

Responsibility . . .

Parttime P1,000.00

D. Position Level Supervisor/Senior Staff

Member

Responsibility . . .

Parttime P1,000.00

E. Position Level Staff Member

Responsibility . . .

Parttime P700.00

Administrative and Clerical Support

A. Position Level Administrative Assistant

Responsibility . . .

Parttime P500.00

B. Position Level Administrative Support

Staff

Responsibility . . .

Parttime P400.00

From the clear and detailed provisions of the MOA and Project Proposal in relation to NCC No. 53, consent to any extension of the
evaluation project, in this instance, must be more concrete than the alleged silence or lack of protest on the part of the DENR. Although
tacit acceptance is recognized in our jurisdiction, 24 as a rule, silence is not equivalent to consent since its ambiguity lends itself to error.
And although under the Civil Code there are instances when silence amounts to consent, 25 these circumstances are wanting in the
case at bar. Furthermore, as correctly pointed out by the respondent COA, the date when the DENR accepted the final project report is
by no means conclusive as to the terminal date of the evaluation project. Examination of the MOA (quoted earlier on pages 19-20)
reveals that the submission of reports merely served to trigger the phased releases of funds. There being no explicit agreement
between PSU and the DENR to extend the duration of the evaluation project, the MOA's "Budget Estimate" which, among others,
provides in detail the duration of service for each member of the evaluation project as amended by the rates provided by NCC No. 53
must be the basis of the honoraria due to the evaluation team.
The other arguments of respondent COA appear to us to be insubstantial and as, essentially, afterthoughts. The COA
apparently does not agree with the policy basis of NCC No. 53 in relation to CPG No. 80-4 since COA argues that loan
proceeds regardless of source eventually become public funds for which the government is accountable. The result would be
that any provisions under any [foreign] loan agreement should be considered locally-funded. We do not consider that the COA
is, under its constitutional mandate, authorized to substitute its own judgment for any applicable law or administrative
regulation with the wisdom or propriety of which, however, it does not agree, at least not before such law or regulation is set
aside by the authorized agency of government i.e., the courts as unconstitutional or illegal and void. The COA, like all
other government agencies, must respect the presumption of legality and constitutionality to which statutes and administrative
regulations are entitled 26 until such statute or regulation is repealed or amended, or until set aside in an appropriate case by a
competent court (and ultimately this Court).

Finally, we turn to petitioner's claim for moral damages and reimbursement of legal expenses. We consider that this claim
cannot be granted as petitioner has failed to present evidence of bad faith or tortious intent warranting an award thereof. The
presumption of regularity in the performance of duty must be accorded to respondent COA; its action should be seen as its
effort to exercise (albeit erroneously, in the case at bar) its constitutional power and duty in respect of uses of government
funds and properties.

WHEREFORE, for all the foregoing, the Petition for Certiorari is hereby GRANTED. COA Decisions Nos. 1547 and 2571,
respectively dated 18 September 1990 and 16 November 1992, are hereby SET ASIDE. The instant evaluation project being a
Foreign-Assisted Project, the following PSU personnel involved in the project shall be paid according to the Budget Estimate
schedule of the MOA as aligned with NCC No. 53:

A. A. For Experts

Duration Rate/
Expert of month Total
Service (NCC
(mo.) No. 53)

1. Dr. Rufino O. Eslao Policy/Admi- 4 P2,000 P8,000 nistrative

expert*-
2. Dr. Victorino P. Espero Ecologist** 4 1,500 6,000
3. Dean Antonio Q. Repollo Silvicul- 3 1,000 3,000
turist***
4. Prof. Artemio M. Rebugio Forestry 4 1,000 4,000
Economist
5. Ms. Naomenida Olermo Soils Expert 2 1,000 2,000
6. Dr. Elvira R. Castillo Social 4 1,000 4,000
Forestry
Expert
7. Dr. Alfredo F. Aquino Management 2 1,000 2,000
Expert
8. Dr. Lydio Calonge Horticul 2 1,000 2,000
turist
9. Engr. Manolito Bernabe Agricultural 2 1,000 2,000
Engineer
10. Prof. Rolando J. Andico Systems 2 1,000 2,000
Analysts/
Programmer
11. Dr. Eusebio Miclat, Jr. Statistician 2 1,000 2,000
12. Dr. Porferio Basilio Shoreline 2 1,000 2,000
Resources
Expert
13. Dr. Elmer C. Vingua Animal 2 1,000 2,000
Science
Specialist

41,000

 * Project Manager/ Project Director

** Assistant Project Director
*** Project Consultants

B. For Support Staff

Duration Rate/
Expert of month Total
Service (NCC
(mo.) No. 53)

1 Henedina M. Tantoco Research 4 700 2,800

Associate**
2 Alicia Angelo Research 4 700 2,800
3 Yolanda Z. Sotelo Documentalist 2.04 700 1,428
4 Gregoria Q. Calela Special 4 700 2,800
Disbursing
Officer
5 Nora A. Caburnay Typist 2.27 500 1,135
6 Marlene S. Bernebe Cashier 2.27 500 1,135

12,098

* Per Attachment to DBM Clarification dated 10

November 1989, Rollo, p. 59.
** Staff Member
*** Administrative Assistants.

No pronouncement as to costs.

SO ORDERED.

Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Cruz, Bidin, on leave.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner,

vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of government. His only
guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The
Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty.
The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the
Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation
under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where
the criminal may have escaped; the extradition treatywith the Republic of Indonesia and the intention of the Philippines to enter into
similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper
implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines,
signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the
United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11,
expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting
Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the Requesting State).
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a
request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury
Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said
extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the
following provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty 5 years on
each count);

B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each count);

C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on each count);

D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to
handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation
and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation
of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed"
(p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999
addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and
papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the
requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime.

Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States
Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request.

In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private
respondent only on August 4, 1999), denied the foregoing requests for the following reasons:

1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States
Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance
with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines
and the United States enumerates the documentary requirements and establishes the procedures under which the documents
submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in
Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary
investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and
treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all
criminal prosecutions are therefore not available.

It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with
copies of the petition, request and extradition documents and this Department will not pose any objection to a request for
ample time to evaluate said documents.

2. The formal request for extradition of the United States contains grand jury information and documents obtained through
grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the
concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and
law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not
authorized by the United States District Courts. In this particular extradition request the United States Government requested
the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your
request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must
represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of
Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of
the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the
parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective,
requests for extradition or surrender of accused or convicted persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital
Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of
Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access
thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request
impartially, fairly and objectively);certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain
petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign
Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with
an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court
stationed in Manila which is presided over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be
given ample time to file a memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
 WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs
and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by
refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the
United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court;
and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days
from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the
parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their
written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER
BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST
FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS
AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE
REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUSIN THE PETITION FOR MANDAMUS, CERTIORARI AND
PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF
THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION
TREATY AND THE PHILIPPINE EXTRADITION LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND
SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT
SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining
order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph
C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to
CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-
94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August
1999.
 (pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as
well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation
stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An
affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially
the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated
August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional
trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the
extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine
Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between
private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing
aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of
the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on
November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine
Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing
him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state
or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are
abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be
accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting
State having jurisdiction over the matter, or some other instruments having equivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused,
his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of
these acts;

3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by
the law, sufficient for evaluation of the request; and

4. Such other documents or information in support of the request.

(Sec. 4. Presidential Decree No. 1069.)

Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the
relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who
shall immediately designate and authorize an attorney in his office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and
the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not
the request is supported by:
 1. Documents, statements, or other types of information which describe the identity and probable location of the person
sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested;

4. A statement of the provisions of law describing the punishment for the offense;

5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the
offense;

6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal
for trial if the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the
request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State
(Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the
Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable
under non-military penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and
complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize
an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a
written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under
consideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order
summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue
a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice
(Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding.
Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of
Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section
8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter
throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a
showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of
Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing
appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file
brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual
criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or
not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1wphi1.nt

With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role
of the Department of Justice at the evaluation stage of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the
request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to
evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not
the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal
legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the
ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of
Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June
17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the
Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement
of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for
which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of
Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the
completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the
Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had
no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition
petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the
right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of
time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in
abeyance pending the filing of private respondent's opposition to the request.

The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging
its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting
the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow
private respondent to participate in the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the
extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed
documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the
papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in
less than one day, make the more authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal
investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority
has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny
the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a
determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-
military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence,
said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of
an administrative body's quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the
evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and
Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or
investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial
authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and
premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of
information by means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p.
64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative
agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with
the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making
findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or
merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of
the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and
circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an
absence of judicial discretion and judgment.

The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no
power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is
to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an
extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition
should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition
can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities.
Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective
extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the
submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the
provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he
shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a
shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is
silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee
may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be
discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested
State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6,
Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an
imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an
investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences
the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool"
for criminal law enforcement (p. 78,Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal
investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation
certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza
during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the
proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois,
378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17,
Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings
which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with
immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal
vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater
deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under
Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the
administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier
case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine
whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be
included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from
the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even
more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally
protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or
replaced, the time spent in incarceration is irretrievable and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently
exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since
both procedures may have the same result the arrest and imprisonment of the respondent or the person charged. Similar to the
evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the
respondent, can possibly lead to his arrest, and to the deprivation of his liberty.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is
neither a piece of criminal legislation nor a criminal procedural statute is not well-taken.Wright is not authority for petitioner's conclusion
that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to
the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and
hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned
by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards
and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516).
Compliance with due process requirements cannot be deemed non-compliance with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective
jurisdictions. At the same time, both States accord common due process protection to their respective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and
terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the
provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them
capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of
an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as
not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal
straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion
and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the
embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA
849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169
U.S. 366).

Due process is comprised of two components substantive due process which requires the intrinsic validity of the law in interfering
with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice
and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp.
102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings,
but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be
notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side
and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees
the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other
supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof.
Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:
 1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article
704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government
Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are
immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right
to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the
property of a delinquent taxpayer, and the replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall
under any of the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty
involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S.
Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum
state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal
construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in
which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition
papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the
face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was
committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the
demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the
asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument
charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements
with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the
government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the
indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or
requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been
held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx parte Tucker,
Cr., 324, S.W.2d 853).

In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State
of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in
behalf of the demanding nation (31A Am Jur 2d 815).

In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal
Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by
a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest
of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-
versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic
channel.

2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so,
the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force
and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the
offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in
accordance with the federal statute that ensures admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. 3184).
Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request
(Ibid.)
 4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must
also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being
sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the
defendant is the person sought and that he committed the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made
under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the
governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions
pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing
magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual
findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of
extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender
an individual rests with the Secretary of State (18 U.S.C. 3186).

7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in
seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the
Secretary of State, who makes the final determination whether to surrender an individual to the foreign government
concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity the Department of
State which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the
Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the
Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier
mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for
extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the
Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing,
and prosecuting the petition for extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due
process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the
evaluation process.

We agree with private respondent's citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of
cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one
might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect
the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize
praiseworthy government officials no less, and perhaps more, than mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that no right that of liberty secured not only
by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency.

(pp. 40-41, Private Respondent's Memorandum.)

In the Philippine context, this Court's ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not
justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be
in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even
the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the
bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the
Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small
Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for
extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-
tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord.
Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of
the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of
mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold
that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an
extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to
meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the
extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the
extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements
of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that
are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits
that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice
Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its
intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and
hearing can be dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from
enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of
the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if adverse to
the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in
court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition
petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and
the implementing law. The prejudice to the "accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside.

Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and
to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on
matters of public concern, and (2) the corollary right of access to official records documents. The general right guaranteed by said
provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise
conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A
Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can
protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of
the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private
respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only
becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However,
if the person invoking the right is the one directly affected thereby, his right to information becomes absolute.

The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the
governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336).
This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives
or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]).
Hence, the real party in interest is the people and any citizen has "standing".
When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either
cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and
not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14,
particularly the right to be informed of the nature and cause of the accusation against him.

The right to information is implemented by the right of access to information within the control of the government ( Bernas, The 1987
Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in
documents and papers pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No
official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S.
Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public
concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in
favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental
action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of
the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an
official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to
notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government
under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due
process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-
US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic
rights of notice and hearing to private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to
keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2,
Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the
and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public
International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there
appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts
should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with
proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in
the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is
irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal
law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230
[1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in
all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not
pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation,
as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute
may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes
and treaties may be invalidated if they are in conflict with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components
of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we
see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic
due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of
notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights.
Reference to the U.S. extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an " ex
parte technical assessment" of the sufficiency of the extradition request and the supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of
notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these
rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in
interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition
documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35
C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential
information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is,
however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial.
The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information.
If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during
trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on
extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation
stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may
result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the
Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's
theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas
corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall
not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that
bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since
Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that
"[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these
contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus
be subservient thereto?

The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to
explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96
[1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997];
Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process
refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31
[1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's
fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the
Extradition Treaty are insubstantial and should not be given paramount consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go
vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No.
807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its
Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the
Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the
Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707,
although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due
process still operate. As held in GSIS vs. Court of Appeals:
 . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed
even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the
charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy
of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain
consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged
with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his
defenses against the charges levelled against him and to present evidence in support of his defenses. . . .

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent.

In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty
itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the
extradition request and the deprivation of private respondent's liberty is easily comprehensible.

We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of
only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267
SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even
call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are
protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over
guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is
premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold
the oar of freedom in the stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to
furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within
which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and
academic by this decision, the same is hereby ordered dismissed.

SO ORDERED.

Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.

Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 137473 August 2, 2001

ESTELITO V. REMOLONA, petitioner,

vs.
CIVIL SERVICE COMMISSION, respondent.

PUNO, J.:

The present petition seeks to review and set aside the Decision rendered by the Court of Appeals dated July 31, 19981 upholding the
decision of the Civil Service Commission which ordered the dismissal of petitioner Estelito V. Remolona (Remolona) from the
government service for dishonesty, and the Resolution dated February 5, 19992denying petitioner's motion for reconsideration.
Records show that petitioner Estelito V. Remolona is the Postmaster at the Postal Office Service in Infanta, Quezon, while his wife Nery
Remolona is a teacher at the Kiborosa Elementary School.
In a letter3 dated January 3, 1991, Francisco R. America, District Supervisor of the Department of Education, Culture & Sports at
Infanta, Quezon, inquired from the Civil Service Commission (CSC) as to the status of the civil service eligibility of Mrs. Remolona who
purportedly got a rating of 81.25% as per Report of Rating issued by the National Board for Teachers.4 Mr. America likewise disclosed
that he received information that Mrs. Remolona was campaigning for a fee of P8,000.00 per examinee for a passing mark in the
teacher's board examinations. --
On February 11, 1991, then CSC Chairman Patricia A. Sto. Tomas issued an Order directing CSC Region IV Director Bella Amilhasan
to conduct an investigation on Mrs. Remolona's eligibility, after verification from the Register of Eligibles in the Office for Central
Personnel Records revealed "that Remolona's name is not in the list of passing and failing examinees, and that the list of examinees for
December 10, 1989 does not include the name of Remolona. Furthermore, Examination No. 061285 as indicated in her report of rating
belongs to a certain Marlou C. Madelo, who took the examination in Cagayan de Oro and got a rating of 65.00%."5

During the preliminary investigation conducted by Jaime G. Pasion, Director II, Civil Service Field Office, Lucena City, Quezon, only
petitioner Remolona appeared. He signed a written statement of facts6 regarding the issuance of the questioned Report of Rating of
Mrs. Remolona, which is summarized in the Memorandum7 submitted by Director Pasion as follows:
"3.1 That sometime in the first week of September, 1990, while riding in a Kapalaran Transit Bus from Sta. Cruz, Laguna on
his way to San Pablo City, he met one Atty. Hadji Salupadin (this is how it sounded) who happened to be sitting beside him;
3.2 That a conversation broke out between them until he was able to confide his problem to Atty. Salupadin about his wife
having difficulty in acquiring an eligibility;

3.3 That Atty. Salupadin who represented himself as working at the Batasan, offered his help for a fee of P3,000.00;

3.4 That the following day they met at the Batasan where he gave the amount of P2,000.00, requirements, application form
and picture of his wife;
 3.5 That the following week, Thursday, at around 1:00 P.M., they met again at the Batasan where he handed to Atty. Salupadin
the amount of P1,000.00 plus P500.00 bonus who in turn handed to him the Report of Rating of one Nery C. Remolona with a
passing grade, then they parted;

3.6 That sometime in the last week of September, he showed the Report of Rating to the District Supervisor, Francisco
America who informed her (sic) that there was no vacancy;

3.7 That he went to Lucena City and complained to Dr. Magsino in writing . . . that Mr. America is asking for money in
exchange for the appointment of his wife but failed to make good his promise. He attached the corroborating affidavits of
Mesdames Carmelinda Pradillada and Rosemarie P. Romantico and Nery C. Remolona x x x;

3.8 That from 1986 to 1988, Mr. America was able to get six (6) checks at P2,600.00 each plus bonus of Nery C. Remolona;

3.9 That Mr. America got mad at them. And when he felt that Mr. America would verify the authenticity of his wife's Report of
Rating, he burned the original."

Furthermore, Remolona admitted that he was responsible in acquiring the alleged fake eligibility, that his wife has no knowledge
thereof, and that he did it because he wanted them to be together. Based on the foregoing, Director Pasion recommended the filing of
the appropriate administrative action against Remolona but absolved Mrs. Nery Remolona from any liability since it has not been shown
that she willfully participated in the commission of the offense.

Consequently, a Formal Charge dated April 6, 1993 was filed against petitioner Remolona, Nery C. Remolona, and Atty. Hadji
Salupadin for possession of fake eligibility, falsification and dishonesty.8 A formal hearing ensued wherein the parties presented their
respective evidence. Thereafter, CSC Regional Director Bella A. Amilhasan issued a Memorandum dated February 14,
19959 recommending that the spouses Estelito and Nery Remolona be found guilty as charged and be meted the corresponding
penalty.

Said recommendation was adopted by the CSG which issued Resolution No. 95-2908 on April 20, 1995, finding the spouses Estelito
and Nery Remolona guilty of dishonesty and imposing the penalty of dismissal and all its accessory penalties. The case against Atty.
Hadji Salupadin was held in abeyance pending proof of his identity. 10In its Resolution No. 965510 11 dated August 27, 1996, the CSC,
acting on the motion for reconsideration filed by the spouses Remolona, absolved Nery Remolona from liability and held that:

"Further, a review of the records and of the arguments presented fails to persuade this Commission to reconsider its earlier
resolution insofar as Estelito Remolona's culpability is concerned. The evidence is substantial enough to effect his conviction.
His act of securing a fake eligibility for his wife is proved by substantial evidence. However, in the case of Nery Remolona, the
Commission finds her innocent of the offense charged, for there is no evidence to show that she has used the fake eligibility to
support an appointment or promotion. In fact, Nery Remolona did not indicate in her Personal Data Sheet that she possesses
any eligibility. It must be pointed out that it was her husband who unilaterally worked to secure a fake eligibility for her.

WHEREFORE, the instant Motion for Reconsideration is hereby denied insofar as respondent Estelito Remolona is
concerned. However, Resolution No. 95-2908 is modified in the sense that respondent Nery Remolona is exonerated of the
charges. Accordingly, Nery Remolona is automatically reinstated to her former position as Teacher with back salaries and
other benefits."

On appeal, the Court of Appeals rendered its questioned decision dismissing the petition for review filed by herein petitioner Remolona.
His motion for reconsideration and/or new trial was likewise denied. Hence, this petition for review.

Petitioner submits that the Court of Appeals erred:

"1. in denying petitioner's motion for new trial;

2. in holding that petitioner is liable for dishonesty; and

3. in sustaining the dismissal of the petitioner for an offense not work connected in relation to his official position in
the government service."
The main issue posed for resolution is whether a civil service employee can be dismissed from the government service for an offense
which is not work-related or which is not connected with the performance of his official duty. Remolona likewise imputes a violation of
his right to due process during the preliminary investigation because he was not assisted by counsel. He claims that the extra-judicial
admission allegedly signed by him is inadmissible because he was merely made to sign a blank form. He also avers that his motion for
new trial should be granted on the ground that the transcript of stenographic notes taken during the hearing of the case before the
Regional Office of the CSC was not forwarded to the Court of Appeals. Finally, he pleads that the penalty of dismissal with forfeiture of
all benefits is too harsh considering the nature of the offense for which he was convicted, the length of his service in government, that
this is his first offense, and the fact that no damage was caused to the government.

The submission of Remolona that his alleged extra-judicial confession is inadmissible because he was not assisted by counsel during
the investigation as required under Section 12 paragraphs 1 and 3, Article III of the 1987 Constitution deserves scant consideration.

The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under custodial investigation.
Custodial investigation is the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to
focus on a particular suspect who had been taken into custody by the police to carry out a process of interrogation that lends itself to
elicit incriminating statements. It is when questions are initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way. The right to counsel attaches only upon the start of such
investigation. Therefore, the exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a
criminal investigation but not to those made in an administrative investigation.12

While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under
existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and
of the respondent's capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel.
In an administrative proceeding, a respondent has the option of engaging the services of counsel or not. This is clear from the
provisions of Section 32, Article VII of Republic Act No. 2260 (otherwise known as the Civil Service Act) and Section 39, paragraph 2,
Rule XIV (on discipline) of the Omnibus Rules Implementing Book V of Executive Order No. 292 (otherwise known as the Administrative
Code of 1987). Thus, the right to counsel is not always imperative in administrative investigations because such inquiries are conducted
merely to determine whether there are facts that merit disciplinary measure against erring public officers and employees, with the
purpose of maintaining the dignity of government service. As such, the hearing conducted by the investigating authority is not part of a
criminal prosecution.13

In the case at bar, Remolona was not accused of any crime in the investigation conducted by the CSC field office. The investigation
was conducted for the purpose of ascertaining the facts and whether there is a prima facie evidence sufficient to form a belief that an
offense cognizable by the CSC has been committed and that Remolona is probably guilty thereof and should be administratively
charged. Perforce, the admissions made by Remolona during such investigation may be used as evidence to justify his dismissal.

The contention of Remolona that he never executed an extra-judicial admission and that he merely signed a blank form cannot be
given credence. Remolona occupies a high position in government as Postmaster at Infanta, Quezon and, as such, he is expected to
be circumspect in his actions specially where he is being administratively charged with a grave offense which carries the penalty of
dismissal from service.

Remolona insists that his dismissal is a violation of his right to due process under Section 2(3), Article XI (B) of the Constitution which
provides that "no officer or employee in the Civil Service shall be removed or suspended except for cause." Although the offense of
dishonesty is punishable under the Civil Service law, Remolona opines that such act must have been committed in the performance of
his function and duty as Postmaster. Considering that the charge of dishonesty involves the falsification of the certificate of rating of his
wife Nery Remolona, the same has no bearing on his office and hence, he is deemed not to have been dismissed for cause. This
proposition is untenable.

It cannot be denied that dishonesty is considered a grave offense punishable by dismissal for the first offense under Section 23, Rule
XIV of the Rules Implementing Book V of Executive Order No. 292. And the rule is that dishonesty, in order to warrant dismissal, need
not be committed in the course of the performance of duty by the person charged. The rationale for the rule is that if a government
officer or employee is dishonest or is guilty of oppression or grave misconduct, even if said defects of character are not connected with
his office, they affect his right to continue in office. The Government cannot tolerate in its service a dishonest official, even if he
performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to
commit acts of dishonesty against his fellow men, even against offices and entities of the government other than the office where he is
employed; and by reason of his office, he enjoys and possesses a certain influence and power which renders the victims of his grave
misconduct, oppression and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations. The private
life of an employee cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of the officer or employee to
continue in office and the discipline and morale of the service.14

The principle is that when an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but
the improvement of the public service and the preservation of the public's faith and confidence in the government.15
The general rule is that where the findings of the administrative body are amply supported by substantial evidence, such findings are
accorded not only respect but also finality, and are binding on this Court. 16 It is not for the reviewing court to weigh the conflicting
evidence, determine the credibility of witnesses, or otherwise substitute its own judgment for that of the administrative agency on the
sufficiency of evidence.17 Thus, when confronted with conflicting versions of factual matters, it is for the administrative agency
concerned in the exercise of discretion to determine which party deserves credence on the basis of the evidence received. 18 The rule,
therefore, is that courts of justice will not generally interfere with purely administrative matters which are addressed to the sound
discretion of government agencies unless there is a clear showing that the latter acted arbitrarily or with grave abuse of discretion or
when they have acted in a capricious and whimsical manner such that their action may amount to an excess of jurisdiction.19

We have carefully scrutinized the records of the case below and we find no compelling reason to deviate from the findings of the CSC
and the Court of Appeals. The written admission of Remolona is replete with details that could have been known only to him. No ill-
motive or bad faith was ever imputed to Director Pasion who conducted the investigation. The presumption that official duty has been
regularly performed remains unrebutted.

The transmittal of the transcript of stenographic notes taken during the formal hearing before the CSC is entirely a matter of discretion
on the part of the Court of Appeals. Revised Administrative Circular No. 1-95 of this Court clearly states that in resolving appeals from
quasi-judicial agencies, it is within the discretion of the Court of Appeals to have the original records of the proceedings under review
transmitted to it.20 Verily, the Court of Appeals decided the merits of the case on the bases of the uncontroverted facts and admissions
contained in the pleadings filed by the parties.

We likewise find no merit in the contention of Remolona that the penalty of dismissal is too harsh considering that there was no damage
caused to the government since the certificate of rating was never used to get an appointment for his wife, Nery Remolona. Although no
pecuniary damage was incurred by the government, there was still falsification of an official document that constitutes gross dishonesty
which cannot be countenanced, considering that he was an accountable officer and occupied a sensitive position. 21 The Code of
Conduct and Ethical Standards for Public Officials and Employees enunciates the State policy of promoting a high standard of ethics
and utmost responsibility in the public service.22

WHEREFORE, the decision appealed from is hereby AFFIRMED in toto.

SO ORDERED.

Bellosillo, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ ., concur.
Davide, Jr., C .J ., Melo, Panganiban, Buena, JJ ., on official leave.
Sandoval-Gutierrez, J ., is on leave.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,

vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M.
GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C.
VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk. There is nothing greater
than for a mother to nurture her beloved child straight from her bosom. The ideal is, of course, for each and every Filipino child to enjoy
the unequaled benefits of breastmilk. But how should this end be attained?

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Administrative Order (A.O.) No. 2006-
0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code,"
Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the
RIRR is not valid as it contains provisions that are not constitutional and go beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health (DOH). For
purposes of herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their
capacity as officials of said executive agency.1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers
granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to
give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World
Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State
Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially
parents and children, are informed of the advantages of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the present
Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary
Injunction.

The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating the
RIRR.3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned RIRR.

After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The Court issued an
Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR) issued by the
Department of Health (DOH) is not constitutional;

2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);

2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the land and may be
implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord with the international
agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

_____________

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global Strategy on Infant and
Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolutions.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court adopts the view
enunciated in Executive Secretary v. Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity
of an association with that of its members. An association has standing to file suit for its workers despite its lack of
direct interest if its members are affected by the action. An organization has standing to assert the concerns of its
constituents.

xxxx

x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the representative of any
individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts
and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to
assert the rights of its members, because it and its members are in every practical sense identical. x x x The
 respondent [association] is but the medium through which its individual members seek to make more effective the
expression of their voices and the redress of their grievances. 5 (Emphasis supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an association has the legal
personality to represent its members because the results of the case will affect their vital interests.7

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary, that the association is
formed "to represent directly or through approved representatives the pharmaceutical andhealth care industry before the Philippine
Government and any of its agencies, the medical professions and the general public." 8 Thus, as an organization, petitioner definitely
has an interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical and health care industry.
Petitioner is duly authorized9to take the appropriate course of action to bring to the attention of government agencies and the courts any
grievance suffered by its members which are directly affected by the RIRR. Petitioner, which is mandated by its Amended Articles of
Incorporation to represent the entire industry, would be remiss in its duties if it fails to act on governmental action that would affect any
of its industry members, no matter how few or numerous they are. Hence, petitioner, whose legal identity is deemed fused with its
members, should be considered as a real party-in-interest which stands to be benefited or injured by any judgment in the present
action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and expanding the coverage
of said law. The defense of the DOH is that the RIRR implements not only the Milk Code but also various international
instruments10 regarding infant and young child nutrition. It is respondents' position that said international instruments are deemed part of
the law of the land and therefore the DOH may implement them through the RIRR.

The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations Convention on the
Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination
of All Forms of Discrimination Against Women, only provide in general terms that steps must be taken by State Parties to diminish infant
and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that
women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific
provisions regarding the use or marketing of breastmilk substitutes.

The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA
Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of domestic law either
bytransformation or incorporation.11 The transformation method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law.12

Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which
provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the
members of the Senate." Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it
to be transformed into municipal law that can be applied to domestic conflicts.13

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all members of the
Senate as required under Section 21, Article VII of the 1987 Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through local legislation, the Milk
Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code did not adopt the
provision in the ICMBS absolutely prohibiting advertising or other forms of promotion to the general public of products within the
scope of the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing materials may
be allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC).

On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

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

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:

[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.16 (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all
states,17 i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity,18 a person's right to life, liberty
and due process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted principles of law" has also been
depicted in this wise:

Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they
have the "character of jus rationale" and are "valid through all kinds of human societies." (Judge Tanaka in his dissenting
opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law
because they are "basic to legal systems generally" and hence part of the jus gentium. These principles, he believes, are
established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one
must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means "a general and consistent practice of states followed by them from a sense of
legal obligation [opinio juris]." (Restatement) This statement contains the two basic elements of custom: the material
factor, that is, how states behave, and the psychological orsubjective factor, that is, why they behave the way they
do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements:
duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to determine why states behave the way
they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a
matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.22 (Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic system.23

WHA Resolutions have not been embodied in any local legislation. Have they attained the status of customary law and should they then
be deemed incorporated as part of the law of the land?

The World Health Organization (WHO) is one of the international specialized agencies allied with the United Nations (UN) by virtue of
Article 57,24 in relation to Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies
of the WHO,26 and has the power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and similar
products moving in international commerce,"27 and to "make recommendations to members with respect to any matter within the
competence of the Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:

Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the
competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of
 such conventions or agreements, which shall come into force for each Member when accepted by it in accordance
with its constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health Assembly of a
convention or agreement, take action relative to the acceptance of such convention or agreement. Each Member shall
notify the Director-General of the action taken, and if it does not accept such convention or agreement within the time limit, it
will furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual
report to the Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine requirements
and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to diseases,
causes of death and public health practices; (c) standards with respect to diagnostic procedures for international use; (d)
standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in
international commerce; (e) advertising and labeling of biological, pharmaceutical and similar products moving in international
commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given of
their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or reservations
within the period stated in the notice. (Emphasis supplied)

On the other hand, under Article 23, recommendations of the WHA do not come into force for members,in the same way that
conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution
reads:

Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter
within the competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would come into force for member states is
conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not binding, but they "carry
moral and political weight, as they constitute the judgment on a health issue of the collective membership of the highest international
body in the field of health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No. 34.22 states:

"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the International
Code of Marketing of Breastmilk Substitutes annexed to the present resolution." (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session, considered the fourth draft
of the code, endorsed it, and unanimously recommended to the Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation rather than a regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to recommendations made to it by the
Organization, and with respect to conventions, agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states to implement the ICMBS
are merely recommendatory and legally non-binding. Thus, unlike what has been done with the ICMBS whereby the legislature
enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions, 30 specifically providing for
exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting
advertisements and promotions of breastmilk substitutes, have not been adopted as a domestic law.

It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that influence state
behavior.31

"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the
International Court of Justice.32 It is, however, an expression of non-binding norms, principles, and practices that influence state
behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this category.34 The most notable is the UN
Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Raada37 and Shangri-la International Hotel Management,
Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the mandate to promote and protect
intellectual property worldwide, has resorted to soft law as a rapid means of norm creation, in order "to reflect and respond to the
changing needs and demands of its constituents."39 Other international organizations which have resorted to soft law include the
International Labor Organization and the Food and Agriculture Organization (in the form of the Codex Alimentarius).40

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome (SARS) and Avian flu
outbreaks.

Although the IHR Resolution does not create new international law binding on WHO member states, it provides an
excellent example of the power of "soft law" in international relations. International lawyers typically distinguish
binding rules of international law-"hard law"-from non-binding norms, principles, and practices that influence state
behavior-"soft law." WHO has during its existence generated many soft law norms, creating a "soft law regime" in
international governance for public health.

The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for improved
international cooperation on infectious diseases. These resolutions clearly define WHO member states' normative duty to
cooperate fully with other countries and with WHO in connection with infectious disease surveillance and response to
outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is powerful politically for
two reasons. First, the SARS outbreak has taught the lesson that participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and consistent state practice on infectious disease surveillance and
outbreak response, perhaps crystallizing eventually into customary international law on infectious disease prevention and
control.41

In the Philippines, the executive department implemented certain measures recommended by WHO to address the outbreaks of SARS
and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various
departments broad powers to close down schools/establishments, conduct health surveillance and monitoring, and ban importation of
poultry and agricultural products.

It must be emphasized that even under such an international emergency, the duty of a state to implement the IHR Resolution was still
considered not binding or enforceable, although said resolutions had great political influence.

As previously discussed, for an international rule to be considered as customary law, it must be established that such rule is being
followed by states because they consider it obligatory to comply with such rules (opinio juris). Respondents have not presented any
evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any compliance by member states with said WHA
Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed
part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the
WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without
the need of a law enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by virtue of its powers and
functions under the Revised Administrative Code even in the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define the national health
policy and implement a national health plan within the framework of the government's general policies and plans, and issue orders
and regulations concerning the implementation of established health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of breastmilk substitutes provided
in some WHA Resolutions has been adopted as part of the national health policy.

Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. 2005-0014, dated May 23, 2005.
Basically, the Administrative Order declared the following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two years and beyond; (2) appropriate
complementary feeding, which is to start at age six months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the
exercise of other feeding options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for
children is emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that as part of such
health policy, the advertisement or promotion of breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with a total ban on
advertising for breastmilk substitutes.

In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion of breastmilk substitutes,
but instead, specifically creates an IAC which will regulate said advertising and promotion, it follows that a total ban policy could be
implemented only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch of government, the
legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the DOH
through the subject RIRR.

Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:

1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to "young children" or
those from ages two years old and beyond:

MILK CODE RIRR

WHEREAS, in order to ensure that safe and adequate Section 2. Purpose These Revised Rules and
nutrition for infants is provided, there is a need to Regulations are hereby promulgated to ensure the
protect and promote breastfeeding and to inform the provision of safe and adequate nutrition for infants and
public about the proper use of breastmilk substitutes young children by the promotion, protection and
and supplements and related products through support of breastfeeding and by ensuring the proper
adequate, consistent and objective information and use of breastmilk substitutes, breastmilk supplements
appropriate regulation of the marketing and distribution and related products when these are medically
of the said substitutes, supplements and related indicated and only when necessary, on the basis of
products; adequate information and through appropriate
marketing and distribution.
SECTION 4(e). "Infant" means a person falling within
the age bracket of 0-12 months. Section 5(ff). "Young Child" means a person from the
age of more than twelve (12) months up to the age of
three (3) years (36 months).

2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in certain instances;
but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and declares that "there is no substitute nor
replacement for breastmilk":

MILK CODE RIRR

WHEREAS, in order to ensure that safe and adequate Section 4. Declaration of Principles The following
nutrition for infants is provided, there is a need to are the underlying principles from which the revised
protect and promote breastfeeding and to inform the rules and regulations are premised upon:
public about the proper use of breastmilk substitutes
and supplements and related products through a. Exclusive breastfeeding is for infants from 0 to six
adequate, consistent and objective information and (6) months.
appropriate regulation of the marketing and distribution
of the said substitutes, supplements and related
products; b. There is no substitute or replacement for breastmilk.

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

MILK CODE RIRR

SECTION 6. The General Public and Mothers. Section 4. Declaration of Principles The following
are the underlying principles from which the revised
(a) No advertising, promotion or other marketing rules and regulations are premised upon:
materials, whether written, audio or visual, for products
within the scope of this Code shall be printed, x x x x
published, distributed, exhibited and broadcast unless
such materials are duly authorized and approved by an f. Advertising, promotions, or sponsor-ships of infant
inter-agency committee created herein pursuant to the formula, breastmilk substitutes and other related
applicable standards provided for in this Code. products are prohibited.

Section 11. Prohibition No advertising, promotions,

sponsorships, or marketing materials and activities for
breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give
subliminal messages or impressions that undermine
breastmilk and breastfeeding or otherwise exaggerate
breastmilk substitutes and/or replacements, as well as
related products covered within the scope of this Code.

Section 13. "Total Effect" - Promotion of products

within the scope of this Code must be objective and
should not equate or make the product appear to be as
good or equal to breastmilk or breastfeeding in the
advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should
not directly or indirectly suggest that buying their
product would produce better individuals, or resulting in
greater love, intelligence, ability, harmony or in any
manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.

Section 15. Content of Materials. - The following

shall not be included in advertising, promotional and
marketing materials:

a. Texts, pictures, illustrations or information which

discourage or tend to undermine the benefits or
superiority of breastfeeding or which idealize the use of
breastmilk substitutes and milk supplements. In this
connection, no pictures of babies and children together
with their mothers, fathers, siblings, grandparents,
other relatives or caregivers (or yayas) shall be used in
any advertisements for infant formula and breastmilk
supplements;

b. The term "humanized," "maternalized," "close to

mother's milk" or similar words in describing breastmilk
substitutes or milk supplements;

c. Pictures or texts that idealize the use of infant and

milk formula.

Section 16. All health and nutrition claims for products

within the scope of the Code are absolutely prohibited.
For this purpose, any phrase or words that connotes to
increase emotional, intellectual abilities of the infant
 and young child and other like phrases shall not be
allowed.

4. The RIRR imposes additional labeling requirements not found in the Milk Code:

MILK CODE RIRR

SECTION 10. Containers/Label. Section 26. Content Each container/label shall

contain such message, in both Filipino and English
(a) Containers and/or labels shall be designed to languages, and which message cannot be readily
provide the necessary information about the separated therefrom, relative the following points:
appropriate use of the products, and in such a way as
not to discourage breastfeeding. (a) The words or phrase "Important Notice" or
"Government Warning" or their equivalent;
(b) Each container shall have a clear, conspicuous and
easily readable and understandable message in (b) A statement of the superiority of breastfeeding;
Pilipino or English printed on it, or on a label, which
message can not readily become separated from it, (c) A statement that there is no substitute for
and which shall include the following points: breastmilk;

(i) the words "Important Notice" or their equivalent; (d) A statement that the product shall be used only on
the advice of a health worker as to the need for its use
(ii) a statement of the superiority of breastfeeding; and the proper methods of use;

(iii) a statement that the product shall be used only on (e) Instructions for appropriate prepara-tion, and a
the advice of a health worker as to the need for its use warning against the health hazards of inappropriate
and the proper methods of use; and preparation; and

(iv) instructions for appropriate preparation, and a (f) The health hazards of unnecessary or improper use
warning against the health hazards of inappropriate of infant formula and other related products including
preparation. information that powdered infant formula may contain
pathogenic microorganisms and must be prepared and
used appropriately.

5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR totally prohibits such
activity:

MILK CODE RIRR

SECTION 7. Health Care System. Section 22. No manufacturer, distributor, or

representatives of products covered by the Code shall
(b) No facility of the health care system shall be used be allowed to conduct or be involved in any activity on
for the purpose of promoting infant formula or other breastfeeding promotion, education and production of
products within the scope of this Code. This Code does Information, Education and Communication (IEC)
not, however, preclude the dissemination of information materials on breastfeeding, holding of or participating
to health professionals as provided in Section 8(b). as speakers in classes or seminars for women and
children activities and to avoid the use of these venues
to market their brands or company names.
SECTION 8. Health Workers. -
SECTION 16. All health and nutrition claims for
(b) Information provided by manufacturers and products within the scope of the Code are absolutely
distributors to health professionals regarding products prohibited. For this purpose, any phrase or words that
within the scope of this Code shall be restricted connotes to increase emotional, intellectual abilities of
to scientific and factual matters and such information the infant and young child and other like phrases shall
shall not imply or create a belief that bottle-feeding is
 equivalent or superior to breastfeeding. It shall also not be allowed.
include the information specified in Section 5(b).

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

MILK CODE RIRR

SECTION 8. Health Workers Section 4. Declaration of Principles

(e) Manufacturers and distributors of products within The following are the underlying principles from which
the scope of this Code may assist in the research, the revised rules and regulations are premised upon:
scholarships and continuing education, of health
professionals, in accordance with the rules and i. Milk companies, and their representatives,should not
regulations promulgated by the Ministry of Health. form part of any policymaking body or entity in relation
to the advancement of breasfeeding.

SECTION 22. No manufacturer, distributor, or

representatives of products covered by the Code shall
be allowed to conduct or be involved in any activity on
breastfeeding promotion, education and production of
Information, Education and Communication (IEC)
materials on breastfeeding, holding of or participating
as speakers in classes or seminars for women and
children activitiesand to avoid the use of these venues
to market their brands or company names.

SECTION 32. Primary Responsibility of Health

Workers - It is the primary responsibility of the health
workers to promote, protect and support breastfeeding
and appropriate infant and young child feeding. Part of
this responsibility is to continuously update their
knowledge and skills on breastfeeding. No assistance,
support, logistics or training from milk companies shall
be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

MILK CODE RIRR

SECTION 6. The General Public and Mothers. Section 51. Donations Within the Scope of This
Code - Donations of products, materials, defined and
(f) Nothing herein contained shall prevent donations covered under the Milk Code and these implementing
from manufacturers and distributors of products within rules and regulations, shall be strictly prohibited.
the scope of this Code upon request by or with the
approval of the Ministry of Health. Section 52. Other Donations By Milk Companies
Not Covered by this Code. - Donations of products,
equipments, and the like, not otherwise falling within
the scope of this Code or these Rules, given by milk
companies and their agents, representatives, whether
in kind or in cash, may only be coursed through the
Inter Agency Committee (IAC), which shall determine
whether such donation be accepted or otherwise.
 8. The RIRR provides for administrative sanctions not imposed by the Milk Code.

MILK CODE RIRR

Section 46. Administrative Sanctions. The

following administrative sanctions shall be imposed
upon any person, juridical or natural, found to have
violated the provisions of the Code and its
implementing Rules and Regulations:

a) 1st violation Warning;

b) 2nd violation Administrative fine of a minimum of

Ten Thousand (P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on the gravity and
extent of the violation, including the recall of the
offending product;

c) 3rd violation Administrative Fine of a minimum of

Sixty Thousand (P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos, depending on the
gravity and extent of the violation, and in addition
thereto, the recall of the offending product, and
suspension of the Certificate of Product Registration
(CPR);

d) 4th violation Administrative Fine of a minimum of

Two Hundred Thousand (P200,000.00) to Five
Hundred (P500,000.00) Thousand Pesos, depending
on the gravity and extent of the violation; and in
addition thereto, the recall of the product, revocation of
the CPR, suspension of the License to Operate (LTO)
for one year;

e) 5th and succeeding repeated violations

Administrative Fine of One Million (P1,000,000.00)
Pesos, the recall of the offending product, cancellation
of the CPR, revocation of the License to Operate (LTO)
of the company concerned, including the blacklisting of
the company to be furnished the Department of Budget
and Management (DBM) and the Department of Trade
and Industry (DTI);

f) An additional penalty of Two Thou-sand Five

Hundred (P2,500.00) Pesos per day shall be made for
every day the violation continues after having received
the order from the IAC or other such appropriate body,
notifying and penalizing the company for the infraction.

For purposes of determining whether or not there is

"repeated" violation, each product violation belonging
or owned by a company, including those of their
subsidiaries, are deemed to be violations of the
concerned milk company and shall not be based on the
specific violating product alone.

9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old. Section 3 of the Milk Code
states:

SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the following products:
breastmilk substitutes, including infant formula; other milk products, foods and beverages, including bottle-fed complementary
foods, when marketed or otherwise represented to be suitable, with or without modification, for use as a partial or total
replacement of breastmilk; feeding bottles and teats. It also applies to their quality and availability, and to information
concerning their use.

Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being marketed to the
public. The law treats infant formula, bottle-fed complementary food, and breastmilk substitute as separate and distinct product
categories.

Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal nutritional requirements of
infants up to between four to six months of age, and adapted to their physiological characteristics"; while under Section 4(b), bottle-fed
complementary food refers to "any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant
formula, when either becomes insufficient to satisfy the nutritional requirements of the infant." An infant under Section 4(e) is a person
falling within the age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12 months that is sought to
be promoted and protected by the Milk Code.

But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being marketed or otherwise
presented as a partial or total replacement for breastmilk, whether or not suitable for that purpose." This section conspicuously lacks
reference to any particular age-group of children. Hence, the provision of the Milk Code cannot be considered exclusive for
children aged 0-12 months. In other words, breastmilk substitutes may also be intended for young children more than 12 months of
age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect and promote the nourishment of children
more than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section 3, then it can be subject to
regulation pursuant to said law, even if the product is to be used by children aged over 12 months.

There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that breastmilk substitutes may be a
proper and possible substitute for breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As held in De Luna v.
Pascual,44 "[t]he particular words, clauses and phrases in the Rule should not be studied as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole."

Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of breastmilk substitutes is
proper if based on complete and updated information." Section 8 of the RIRR also states that information and educational materials
should include information on the proper use of infant formula when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes may be
proper.

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with each other.

To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it is important to
deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as defined in general under the 1987 Administrative
Code,47 and as delegated in particular under the Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise of police powers
delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it. .48 However, health information,
particularly advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area
for regulation by the DOH.49

As early as the 1917 Revised Administrative Code of the Philippine Islands, 50 health information was already within the ambit of the
regulatory powers of the predecessor of DOH.51 Section 938 thereof charged it with the duty to protect the health of the people, and
vested it with such powers as "(g) the dissemination of hygienic information among the people and especially the inculcation of
knowledge as to the proper care of infants and the methods of preventing and combating dangerous communicable diseases."

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy pronounced under Section 15,
Article II of the 1987 Constitution, which is "to protect and promote the right to health of the people and instill health
consciousness among them."52 To that end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate
health information and educate the population on important health, medical and environmental matters which have health
implications."53

When it comes to information regarding nutrition of infants and young children, however, the Milk Code specifically delegated to the
Ministry of Health (hereinafter referred to as DOH) the power to ensure that there is adequate, consistent and objective information on
breastfeeding and use of breastmilk substitutes, supplements and related products; and the power to control such information. These
are expressly provided for in Sections 12 and 5(a), to wit:

SECTION 12. Implementation and Monitoring

xxxx

(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of the provisions of this
Code. For this purpose, the Ministry of Health shall have the following powers and functions:

(1) To promulgate such rules and regulations as are necessary or proper for the implementation of this Code and the
accomplishment of its purposes and objectives.

xxxx

(4) To exercise such other powers and functions as may be necessary for or incidental to the attainment of the
purposes and objectives of this Code.

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families
and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis--visbreastmilk substitutes,
supplement and related products, in the following manner:

SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended
to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative
effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5)
where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial implications of its use;
the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary
or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes.

SECTION 8. Health Workers

xxxx

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

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products,
and in such a way as not to discourage breastfeeding.

xxxx

(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to whom such information may be disseminated under
Sections 6 through 9 of the Milk Code 54 to ensure that the information that would reach pregnant women, mothers of infants, and health
professionals and workers in the health care system is restricted to scientific and factual matters and shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code to control information regarding breastmilk vis-a-vis breastmilk
substitutes is not absolute as the power to control does not encompass the power to absolutely prohibit the advertising, marketing,
and promotion of breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally indicate that the control over information given to the DOH is not
absolute and that absolute prohibition is not contemplated by the Code:

a) Section 2 which requires adequate information and appropriate marketing and distribution of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of safe and adequate nutrition for
infants by the protection and promotion of breastfeeding and by ensuring the proper use of breastmilk substitutes and
breastmilk supplements when these are necessary, on the basis of adequate information and through appropriate
marketing and distribution.

b) Section 3 which specifically states that the Code applies to the marketing of and practices related to breastmilk substitutes,
including infant formula, and to information concerning their use;

c) Section 5(a) which provides that the government shall ensure that objective and consistent information is provided on infant
feeding;

d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not use any picture or
text which may idealize the use of breastmilk substitutes and should include information on the health hazards of unnecessary
or improper use of said product;

e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine advertising,
promotion, and other marketing materials;

f) Section 8(b) which states that milk companies may provide information to health professionals but such information should
be restricted to factual and scientific matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and

g) Section 10 which provides that containers or labels should not contain information that would discourage breastfeeding and
idealize the use of infant formula.

It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling and advertising.

Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements, specifically: a) that there be a
statement that there is no substitute to breastmilk; and b) that there be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used appropriately. Section 16 57 of the RIRR prohibits all health and nutrition
claims for products within the scope of the Milk Code, such as claims of increased emotional and intellectual abilities of the infant and
young child.

These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to wit:

SECTION 8. Health workers -

xxxx

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

and Section 10(d)59 which bars the use on containers and labels of the terms "humanized," "maternalized," or similar terms.

These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product
equivalent to breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority of
breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding breastmilk substitutes, not
to containers and labels thereof. However, such restrictive application of Section 8(b) will result in the absurd situation in which milk
companies and distributors are forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk, and
yet be allowed to display on the containers and labels of their products the exact opposite message. That askewed interpretation of the
Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information regarding breastmilk vis-a-
vis breastmilk substitutes be consistent, at the same time giving the government control over planning, provision, design, and
dissemination of information on infant feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a substitute for breastmilk,
is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring circumvention of the protection and promotion of
breastfeeding as embodied in Section 260 of the Milk Code.

Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk Code which reads:

SECTION 5. x x x

xxxx

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended
to reach pregnant women and mothers of infants, shall include clear information on all the following points: x x x (5) where
needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include the social and financial implications of its use; the health
hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary or improper
use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize
the use of breastmilk substitutes. (Emphasis supplied)

The label of a product contains information about said product intended for the buyers thereof. The buyers of breastmilk substitutes
are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being
present in infant formula and other related products when these are prepared and used inappropriately.

Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to contaminations and there is as yet
no technology that allows production of powdered infant formula that eliminates all forms of contamination. 62

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding health hazards including the
possibility of contamination with pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and supplements and related products
cannot be questioned. It is its intervention into the area of advertising, promotion, and marketing that is being assailed by petitioner.

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers.

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of
this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and
approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC, thus:

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following members is hereby
created:

Minister of Health ------------------- Chairman

Minister of Trade and Industry ------------------- Member

 Minister of Justice ------------------- Member

Minister of Social Services and Development ------------------- Member

The members may designate their duly authorized representative to every meeting of the Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or visual, on
products within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or other marketing materials, whether written, audio or visual,
on products within the scope of this Code;

(3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as the
performance of its duties and responsibilities; and

(4) To promulgate such rules and regulations as are necessary or proper for the implementation of Section
6(a) of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities for breastmilk
substitutes intended for infants and young children up to twenty-four (24) months, shall be allowed, because they tend to
convey or give subliminal messages or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate
breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code.

prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes in line with the RIRRs
declaration of principle under Section 4(f), to wit:

SECTION 4. Declaration of Principles

xxxx

(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the IAC but also imposed
absolute prohibition on advertising, promotion, and marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for prior approval by IAC of
all advertising, marketing and promotional materials prior to dissemination.

Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the oral arguments on June
19, 2007, that the prohibition under Section 11 is not actually operational, viz:

SOLICITOR GENERAL DEVANADERA:

xxxx

x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute prohibition on
advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12 provides is not an absolute prohibition
because Section 11 while it states and it is entitled prohibition it states that no advertising, promotion, sponsorship or
marketing materials and activities for breast milk substitutes intended for infants and young children up to 24 months shall be
allowed because this is the standard they tend to convey or give subliminal messages or impression undermine that
breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section, Section 12, provides for the inter
agency committee that is empowered to process and evaluate all the advertising and promotion materials.

xxxx

What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the advertisement and the
promotions of breastfeeding milk substitutes.

xxxx

Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-Agency Committee that
processes and evaluates because there may be some information dissemination that are straight forward information
dissemination. What the AO 2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your
Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and Regulations
regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

x x x Don't you think that the Department of Health overstepped its rule making authority when it totally banned advertising and
promotion under Section 11 prescribed the total effect rule as well as the content of materials under Section 13 and 15 of the
rules and regulations?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency Committee is
under the Department of Health, Your Honor.

xxxx

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk substitutes in the
Revised Rules?

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes intended for children
two (2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some advertising and
promotional materials, subject to the standards that we have stated earlier, which are- they should not undermine
breastfeeding, Your Honor.
 xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly 12 and 13 and 15,
Your Honor, because it is recognized that the Inter-Agency Committee has that power to evaluate promotional materials, Your
Honor.

ASSOCIATE JUSTICE NAZARIO:

So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute regarding infants two (2)
years below?

SOLICITOR GENERAL DEVANADERA:

We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and standards have been
set. One of which is that, the Inter-Agency Committee can allow if the advertising and promotions will not undermine
breastmilk and breastfeeding, Your Honor.63

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or rejection of advertising,
promotional, or other marketing materials under Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof
which in turn provides that the rules and regulations must be "pursuant to the applicable standards provided for in this Code." Said
standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy reference, are
quoted hereunder:

SECTION 5. Information and Education

xxxx

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended
to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative
effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5)
where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial implications of its use; the health
hazards of inappropriate foods of feeding methods; and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of
breastmilk substitutes.

xxxx

SECTION 8. Health Workers.

xxxx

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

xxxx

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products,
and in such a way as not to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino or English
printed on it, or on a label, which message can not readily become separated from it, and which shall include the following
points:

(i) the words "Important Notice" or their equivalent;

 (ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use and the
proper methods of use; and

(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation.

Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the provisions of the
Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that:

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families
and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational terms the standards set forth in Sections 5, 8,
and 10 of the Milk Code, by which the IAC shall screen advertising, promotional, or other marketing materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as follows:

SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate or
make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any
case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product
would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better health
to the baby or other such exaggerated and unsubstantiated claim.

Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through that single
provision, the DOH exercises control over the information content of advertising, promotional and marketing materials on
breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It also sets a viable standard against which the IAC
may screen such materials before they are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:

x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and equity," "public
convenience and welfare," and "simplicity, economy and welfare."65

In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.

4. With regard to activities for dissemination of information to health professionals, the Court also finds that there is no inconsistency
between the provisions of the Milk Code and the RIRR. Section 7(b) 66 of the Milk Code, in relation to Section 8(b) 67 of the same Code,
allows dissemination of information to health professionals but suchinformation is restricted to scientific and factual matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health professionals on
scientific and factual matters. What it prohibits is the involvement of the manufacturer and distributor of the products covered by the
Code in activities for the promotion, education and production of Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended forwomen and children. Said provision cannot be construed to encompass even the dissemination
of information to health professionals, as restricted by the Milk Code.

5. Next, petitioner alleges that Section 8(e) 68 of the Milk Code permits milk manufacturers and distributors to extend assistance in
research and in the continuing education of health professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same.
Petitioner also assails Section 4(i)69 of the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking body
in relation to the advancement of breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any policymaking body or entity
in relation to the advancement of breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code. Note that
under Section 12(b) of the Milk Code, it is the DOH which shall be principally responsible for the implementation and enforcement of
the provisions of said Code. It is entirely up to the DOH to decide which entities to call upon or allow to be part of policymaking bodies
on breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in any policymaking body in relation to the
advancement of breastfeeding is in accord with the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving reasearch assistance and
continuing education to health professionals. Section 2270 of the RIRR does not pertain to research assistance to or the
continuing education of health professionals; rather, it deals with breastfeeding promotion and education for women and
children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance for research or continuing education to
health professionals; hence, petitioner's argument against this particular provision must be struck down.

It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR provide thatresearch assistance
for health workers and researchers may be allowed upon approval of an ethics committee, and with certain disclosure
requirements imposed on the milk company and on the recipient of the research award.

The Milk Code endows the DOH with the power to determine how such research or educational assistance may be given by milk
companies or under what conditions health workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing
limitations on the kind of research done or extent of assistance given by milk companies are completely in accord with the Milk Code.

Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance, support, logistics or training to
health workers. This provision is within the prerogative given to the DOH under Section 8(e) 74 of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes may assist in researches, scholarships and the continuing education, of health
professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of the Milk Code
provides that donations may be made by manufacturers and distributors of breastmilk substitutesupon the request or with the
approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH
whether to request or accept such donations. The DOH then appropriately exercised its discretion through Section 51 75 of the RIRR
which sets forth its policy not to request or approve donations from manufacturers and distributors of breastmilk substitutes.

It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk companies not covered
by the Code should be coursed through the IAC which shall determine whether such donation should be accepted or refused. As
reasoned out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity can
be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code does
not prohibit the DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk Code, the Court upholds
petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring difference in said case and the
present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted
by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the
same law the power to review on appeal the order or decision of the CAA and to determine whether to impose, remit, mitigate, increase
or compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative fines.

In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld the Department of Energy (DOE)
Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of prohibited
acts. The Court found that nothing in the circular contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and
R.A. No. 7638 to impose fines or penalties.

In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or impose
administrative fines. Thus, without any express grant of power to fix or impose such fines, the DOH cannot provide for those fines in the
RIRR. In this regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the RIRR. Said
provision is, therefore, null and void.

The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk Code authorizes the DOH to
"cause the prosecution of the violators of this Code and other pertinent laws on products covered by this Code." Section 13 of the Milk
Code provides for the penalties to be imposed on violators of the provision of the Milk Code or the rules and regulations issued
pursuant to it, to wit:

SECTION 13. Sanctions

(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to this Code shall,
upon conviction, be punished by a penalty of two (2) months to one (1) year imprisonment or a fine of not less than One
Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed by
a juridical person, the chairman of the Board of Directors, the president, general manager, or the partners and/or the persons
directly responsible therefor, shall be penalized.

(b) Any license, permit or authority issued by any government agency to any health worker, distributor, manufacturer, or
marketing firm or personnel for the practice of their profession or occupation, or for the pursuit of their business, may, upon
 recommendation of the Ministry of Health, be suspended or revoked in the event of repeated violations of this Code, or of the
rules and regulations issued pursuant to this Code. (Emphasis supplied)

8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.

Section 57 reads:

SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof inconsistent with these
revised rules and implementing regulations are hereby repealed or modified accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and regulations. Thus, said
provision is valid as it is within the DOH's rule-making power.

An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make rules and regulations
which results in delegated legislation that is within the confines of the granting statute and the Constitution, and subject to the doctrine
of non-delegability and separability of powers. 78 Such express grant of rule-making power necessarily includes the power to amend,
revise, alter, or repeal the same.79 This is to allow administrative agencies flexibility in formulating and adjusting the details and manner
by which they are to implement the provisions of a law,80 in order to make it more responsive to the times. Hence, it is a standard
provision in administrative rules that prior issuances of administrative agencies that are inconsistent therewith are declared repealed or
modified.

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in contravention of the Milk
Code and, therefore, null and void. The rest of the provisions of the RIRR are in consonance with the Milk Code.

Lastly, petitioner makes a "catch-all" allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and oppressive, and is
offensive to the due process clause of the Constitution, insofar as the same is in restraint of trade and because a
provision therein is inadequate to provide the public with a comprehensible basis to determine whether or not they have
committed a violation.81 (Emphasis supplied)

Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that suppress the trade of milk and,
thus, violate the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public good. Public
interest must be upheld over business interests.90 In Pest Management Association of the Philippines v. Fertilizer and Pesticide
Authority,91 it was held thus:

x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut Authority,despite the fact
that "our present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the
power to intervene whenever necessary to promote the general welfare." There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited case, the Court declared that
"free enterprise does not call for removal of protective regulations." x x x It must be clearly explained and proven by
competent evidence just exactly how such protective regulation would result in the restraint of trade . [Emphasis and
underscoring supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers participation in any policymaking body (Section 4(i)),
classes and seminars for women and children (Section 22); the giving of assistance, support and logistics or training (Section 32); and
the giving of donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that
the proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade.

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said section provides for the
definition of the term "milk company," to wit:

SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula, follow-up milk, milk
formula, milk supplement, breastmilk substitute or replacement, or by any other description of such nature, including their
representatives who promote or otherwise advance their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

 (d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in the business
(whether directly or indirectly) of marketing at the wholesale or retail level a product within the scope of this Code. A "primary
distributor" is a manufacturer's sales agent, representative, national distributor or broker.

xxxx

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

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

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

The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about any change in the treatment or
regulation of "distributors" and "manufacturers" of breastmilk substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the
Milk Code, constituting reasonable regulation of an industry which affects public health and welfare and, as such, the rest of the RIRR
do not constitute illegal restraint of trade nor are they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12,
2006 are declared NULL and VOID for being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of Administrative Order No.
2006-0012 is concerned.

SO ORDERED.

Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, Carpio-Morales, Azcuna, Tinga, Chico-
Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.