EN BANC

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T.

REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS
DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as
Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR.,
as Secretary of Environment and Natural Resources; VICENTE V. JAYME,
as Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice;
FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS
SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as
Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary;
JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO
ARRIZABAL, as Secretary of Science and Technology; JOSE
CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO
GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as
Secretary of Health; REINERIO D. REYES, as Secretary of Transportation
and Communication; GUILLERMO CARAGUE, as Commissioner of the
Budget; and SOLITA MONSOD, as Head of the National Economic
Development Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for
petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and
are being resolved jointly as both seek a declaration of the unconstitutionality of
Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987.
The pertinent provisions of the assailed Executive Order are:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a

member of the Cabinet, undersecretary or assistant secretary or other
appointive officials of the Executive Department may, in addition to his
primary position, hold not more than two positions in the government and
government corporations and receive the corresponding compensation
therefor; Provided, that this limitation shall not apply to ad hoc bodies or
committees, or to boards, councils or bodies of which the President is the
Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or

other appointive official of the Executive Department holds more positions
than what is allowed in Section 1 hereof, they (sic) must relinquish the excess
position in favor of the subordinate official who is next in rank, but in no case
shall any official hold more than two positions other than his primary
position.

Sec. 3. In order to fully protect the interest of the government in government-

owned or controlled corporations, at least one-third (1/3) of the members of
the boards of such corporation should either be a secretary, or undersecretary,
or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of
the Cabinet, their undersecretaries and assistant secretaries to hold other
government offices or positions in addition to their primary positions, albeit subject
to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987
Constitution, 2 which provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. They
 shall not, during said tenure, directly or indirectly practice any other
profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall
strictly avoid conflict of interest in the conduct of their office.

It is alleged that the above-quoted Section 13, Article VII prohibits public
respondents, as members of the Cabinet, along with the other public officials
enumerated in the list attached to the petitions as Annex "C" in G.R. No.
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or
employment during their tenure. In addition to seeking a declaration of the
unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the
Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs
of prohibition and mandamus, as well as a temporary restraining order directing
public respondents therein to cease and desist from holding, in addition to their
primary positions, dual or multiple positions other than those authorized by the
1987 Constitution and from receiving any salaries, allowances, per diems and other
forms of privileges and the like appurtenant to their questioned positions, and
compelling public respondents to return, reimburse or refund any and all amounts
or benefits that they may have received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that

notwithstanding the aforequoted "absolute and self-executing" provision of the 1987
Constitution, then Secretary of Justice Sedfrey Ordoez, construing Section 13,
Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987
Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their deputies
(undersecretaries) and assistant secretaries may hold other public office, including
membership in the boards of government corporations: (a) when directly provided
for in the Constitution as in the case of the Secretary of Justice who is made an ex-
officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article
VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their
respective positions; and that on the basis of this Opinion, the President of the
Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27,
1987: promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73
and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article
VII and the general provision in another article, Section 7, par. (2), Article I-XB.
This "strained linkage" between the two provisions, each addressed to a distinct and
separate group of public officers one, the President and her official family, and
the other, public servants in general allegedly "abolished the clearly separate,
higher, exclusive, and mandatory constitutional rank assigned to the prohibition
against multiple jobs for the President, the Vice-President, the members of the
Cabinet, and their deputies and subalterns, who are the leaders of government
expected to lead by example." 7Article IX-B, Section 7, par. (2) 8 provides:

Sec. 7. . . . . .

Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the government
or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.

The Solicitor General counters that Department of Justice DOJ Opinion No. 73,
series of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of
1987 9 and DOJ Opinion No. 155, series of 1988, 10being the first official construction
and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2)
of Section 7, Article I-XB of the Constitution, involving the same subject of
appointments or designations of an appointive executive official to positions other
than his primary position, is "reasonably valid and constitutionally firm," and that
Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of
1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129,
series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation
imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which,
although not so designated as ex-officio are allowed by the primary functions of the
public official, but only to the holding of multiple positions which are not related to
or necessarily included in the position of the public official concerned (disparate
positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by

petitioners on the principal submission that it adds exceptions to Section 13, Article
VII other than those provided in the Constitution. According to petitioners, by
virtue of the phrase "unless otherwise provided in this Constitution," the only
exceptions against holding any other office or employment in Government are those
provided in the Constitution, namely: (1) The Vice-President may be appointed as a
Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the
Secretary of Justice is an ex-officio member of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2),
Article I-XB on the Civil Service Commission applies to officers and employees of
the Civil Service in general and that said exceptions do not apply and cannot be
extended to Section 13, Article VII which applies specifically to the President, Vice-
President, Members of the Cabinet and their deputies or assistants.

There is no dispute that the prohibition against the President, Vice-President, the
members of the Cabinet and their deputies or assistants from holding dual or
multiple positions in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents lies on the constitutional
basis of the exception. Petitioners insist that because of the phrase "unless
otherwise provided in this Constitution" used in Section 13 of Article VII, the
exception must be expressly provided in the Constitution, as in the case of the Vice-
President being allowed to become a Member of the Cabinet under the second
paragraph of Section 3, Article VII or the Secretary of Justice being designated
an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1).
Public respondents, on the other hand, maintain that the phrase "unless otherwise
provided in the Constitution" in Section 13, Article VII makes reference to Section 7,
par. (2), Article I-XB insofar as the appointive officials mentioned therein are
concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of
the 1987 Constitution insofar as Cabinet members, their deputies or assistants are
concerned admit of the broad exceptions made for appointive officials in general
under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus:
"Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporation or their subsidiaries."
We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the

provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its
adoption, and the evils, if any, sought to be prevented or remedied. A doubtful
provision will be examined in the light of the history of the times, and the condition
and circumstances under which the Constitution was framed. The object is to
ascertain the reason which induced the framers of the Constitution to enact the
particular provision and the purpose sought to be accomplished thereby, in order to
construe the whole as to make the words consonant to that reason and calculated to
effect that purpose. 11

The practice of designating members of the Cabinet, their deputies and assistants
as members of the governing bodies or boards of various government agencies and
instrumentalities, including government-owned and controlled corporations, became
prevalent during the time legislative powers in this country were exercised by
former President Ferdinand E. Marcos pursuant to his martial law authority. There
was a proliferation of newly-created agencies, instrumentalities and government-
owned and controlled corporations created by presidential decrees and other modes
of presidential issuances where Cabinet members, their deputies or assistants were
designated to head or sit as members of the board with the corresponding salaries,
emoluments, per diems, allowances and other perquisites of office. Most of these
instrumentalities have remained up to the present time.

This practice of holding multiple offices or positions in the government soon led to
abuses by unscrupulous public officials who took advantage of this scheme for
purposes of self-enrichment. In fact, the holding of multiple offices in government
was strongly denounced on the floor of the Batasang Pambansa. 12 This
condemnation came in reaction to the published report of the Commission on Audit,
entitled "1983 Summary Annual Audit Report on: Government-Owned and
Controlled Corporations, Self-Governing Boards and Commissions" which carried as
its Figure No. 4 a "Roaster of Membership in Governing Boards of Government-
Owned and Controlled Corporations as of December 31, 1983."

Particularly odious and revolting to the people's sense of propriety and morality in
government service were the data contained therein that Roberto V. Ongpin was a
member of the governing boards of twenty-nine (29) governmental agencies,
instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar
E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito
and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13);
Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O.
Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and
Teodoro Q. Pea of ten (10) each. 13

The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution the
provisions under consideration which are envisioned to remedy, if not correct, the
evils that flow from the holding of multiple governmental offices and employment. In
fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in
these cases, one of the strongest selling points of the 1987 Constitution during the
campaign for its ratification was the assurance given by its proponents that the
scandalous practice of Cabinet members holding multiple positions in the
government and collecting unconscionably excessive compensation therefrom would
be discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB
already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President,
members of the Cabinet, their deputies and assistants from holding any other office
or employment during their tenure, unless otherwise provided in the Constitution
itself.

Evidently, from this move as well as in the different phraseologies of the

constitutional provisions in question, the intent of the framers of the Constitution
was to impose a stricter prohibition on the President and his official family in so far
as holding other offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with
other provisions of the Constitution on the disqualifications of certain public officials
or employees from holding other offices or employment. Under Section 13, Article VI,
"(N)o Senator or Member of the House of Representatives may hold any other office
or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o
member of the armed forces in the active service shall, at any time, be appointed in
any capacity to a civilian position in the Government, including government-owned
or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article
IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by
the primary functions of his position, no appointive official shall hold any other
office or employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other office
or employment, the prohibition pertains to an office or employment in the
government and government-owned or controlled corporations or their subsidiaries.
In striking contrast is the wording of Section 13, Article VII which states that "(T)he
President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other
office or employment during their tenure." In the latter provision, the
disqualification is absolute, not being qualified by the phrase "in the Government."
The prohibition imposed on the President and his official family is therefore all-
embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall
not, during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in
any franchise, or special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries." These sweeping, all-embracing prohibitions
imposed on the President and his official family, which prohibitions are not similarly
imposed on other public officials or employees such as the Members of Congress,
members of the civil service in general and members of the armed forces, are proof
of the intent of the 1987 Constitution to treat the President and his official family as
a class by itself and to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President
and his official family was also succinctly articulated by Commissioner Vicente Foz
after Commissioner Regalado Maambong noted during the floor deliberations and
debate that there was no symmetry between the Civil Service prohibitions,
originally found in the General Provisions and the anticipated report on the
Executive Department. Commissioner Foz Commented, "We actually have to be
stricter with the President and the members of the Cabinet because they exercise
more powers and, therefore, more cheeks and restraints on them are called for
because there is more possibility of abuse in their case." 14

Thus, while all other appointive officials in the civil service are allowed to hold other
office or employment in the government during their tenure when such is allowed by
law or by the primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the
general rule applicable to all elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception applicable only to the
President, the Vice- President, Members of the Cabinet, their deputies and
assistants.

This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions
provided under Section 7, Article I-XB of the 1987 Constitution. To construe said
qualifying phrase as respondents would have us do, would render nugatory and
meaningless the manifest intent and purpose of the framers of the Constitution to
impose a stricter prohibition on the President, Vice-President, Members of the
Cabinet, their deputies and assistants with respect to holding other offices or
employment in the government during their tenure. Respondents' interpretation
that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of
Article IX-B would obliterate the distinction so carefully set by the framers of the
Constitution as to when the high-ranking officials of the Executive Branch from the
President to Assistant Secretary, on the one hand, and the generality of civil
servants from the rank immediately below Assistant Secretary downwards, on the
other, may hold any other office or position in the government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain

parts of the Constitution inoperative. This observation applies particularly to the
Vice-President who, under Section 13 of Article VII is allowed to hold other office or
employment when so authorized by the Constitution, but who as an elective public
official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment
or designation in any capacity to any public office or position during his tenure."
Surely, to say that the phrase "unless otherwise provided in this Constitution" found
in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would
render meaningless the specific provisions of the Constitution authorizing the Vice-
President to become a member of the Cabinet, 15 and to act as President without
relinquishing the Vice-Presidency where the President shall not nave been chosen
or fails to qualify.16 Such absurd consequence can be avoided only by interpreting the
two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB
providing the general rule and the other, i.e., Section 13, Article VII as constituting
the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be
construed vis-a-vis Section 13, Article VII.

It is a well-established rule in Constitutional construction that no one provision of

the Constitution is to be separated from all the others, to be considered alone, but
that all the provisions bearing upon a particular subject are to be brought into view
and to be so interpreted as to effectuate the great purposes of the
instrument. 17Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution 18 and
one section is not to be allowed to defeat another, if by any reasonable construction,
the two can be made to stand together. 19

In other words, the court must harmonize them, if practicable, and must lean in
favor of a construction which will render every word operative, rather than one
which may make the words idle and nugatory. 20

Since the evident purpose of the framers of the 1987 Constitution is to impose a
stricter prohibition on the President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple offices or employment in
the government during their tenure, the exception to this prohibition must be read
with equal severity. On its face, the language of Section 13, Article VII is prohibitory
so that it must be understood as intended to be a positive and unequivocal negation
of the privilege of holding multiple government offices or employment. Verily,
wherever the language used in the constitution is prohibitory, it is to be understood
as intended to be a positive and unequivocal negation. 21 The phrase "unless
otherwise provided in this Constitution" must be given a literal interpretation to
refer only to those particular instances cited in the Constitution itself, to wit: the
Vice-President being appointed as a member of the Cabinet under Section 3, par.
(2), Article VII; or acting as President in those instances provided under Section 7,
pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of
the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under

Section 13, Article VII of the Constitution must not, however, be construed as
applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and
as required 22 by the primary functions of said officials' office. The reason is that
these posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and
functions on said officials. 23 To characterize these posts otherwise would lead to
absurd consequences, among which are: The President of the Philippines cannot
chair the National Security Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the Executive Secretary, and
the Secretaries of National Defense, Justice, Labor and Employment and Local
Government sit in this Council, which would then have no reason to exist for lack of
a chairperson and members. The respective undersecretaries and assistant
secretaries, would also be prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the
National Manpower and Youth Council (NMYC) or the Philippine Overseas
Employment Administration (POEA), both of which are attached to his department
for policy coordination and guidance. Neither can his Undersecretaries and
Assistant Secretaries chair these agencies.

The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither
can their respective undersecretaries and assistant secretaries. The Central Bank
Governor would then be assisted by lower ranking employees in providing policy
direction in the areas of money, banking and credit.25

Indeed, the framers of our Constitution could not have intended such absurd
consequences. A Constitution, viewed as a continuously operative charter of
government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should be
avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as
covering positions held without additional compensation in ex-officio capacities as
provided by law and as required by the primary functions of the concerned official's
office. The term ex-officio means "from office; by virtue of office." It refers to an
"authority derived from official character merely, not expressly conferred upon the
individual character, but rather annexed to the official position." Ex-officio likewise
denotes an "act done in an official character, or as a consequence of office, and
without any other appointment or authority than that conferred by the
office." 27 An ex-officio member of a board is one who is a member by virtue of his
title to a certain office, and without further warrant or appointment. 28 To illustrate,
by express provision of law, the Secretary of Transportation and Communications is
the ex-officio Chairman of the Board of the Philippine Ports Authority, 29 and the
Light Rail Transit Authority. 30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs.
Embroidery and Apparel Control and Inspection Board, 31 thus: "An examination of
section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and
members of the Board to qualify they need only be designated by the respective
department heads. With the exception of the representative from the private sector,
they sit ex-officio. In order to be designated they must already be holding positions
in the offices mentioned in the law. Thus, for instance, one who does not hold a
previous appointment in the Bureau of Customs, cannot, under the act, be
designated a representative from that office. The same is true with respect to the
representatives from the other offices. No new appointments are necessary. This is
as it should be, because the representatives so designated merely perform duties in
the Board in addition to those already performed under their original
appointments." 32

The term "primary" used to describe "functions" refers to the order of importance
and thus means chief or principal function. The term is not restricted to the
singular but may refer to the plural. 33 The additional duties must not only be
closely related to, but must be required by the official's primary functions. Examples
of designations to positions by virtue of one's primary functions are the Secretaries
of Finance and Budget sitting as members of the Monetary Board, and the
Secretary of Transportation and Communications acting as Chairman of the
Maritime Industry Authority 34 and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related,
inconsistent, incompatible, or otherwise alien to the primary function of a cabinet
official, such additional functions would fall under the purview of "any other office"
prohibited by the Constitution. An example would be the Press Undersecretary
sitting as a member of the Board of the Philippine Amusement and Gaming
Corporation. The same rule applies to such positions which confer on the cabinet
official management functions and/or monetary compensation, such as but not
limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet

Members, their deputies or assistants which are not inconsistent with those already
prescribed by their offices or appointments by virtue of their special knowledge,
expertise and skill in their respective executive offices is a practice long-recognized
in many jurisdictions. It is a practice justified by the demands of efficiency, policy
direction, continuity and coordination among the different offices in the Executive
Branch in the discharge of its multifarious tasks of executing and implementing
laws affecting national interest and general welfare and delivering basic services to
the people. It is consistent with the power vested on the President and his alter
egos, the Cabinet members, to have control of all the executive departments,
bureaus and offices and to ensure that the laws are faithfully executed. 35 Without
these additional duties and functions being assigned to the President and his official
family to sit in the governing bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by law and as required by
their primary functions, they would be supervision, thereby deprived of the means
for control and resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may
not transgress the prohibition embodied in Section 13, Article VII of the 1987
Constitution, such additional duties or functions must be required by the primary
functions of the official concerned, who is to perform the same in an ex-officio
capacity as provided by law, without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional
compensation for his services in the said position. The reason is that these services
are already paid for and covered by the compensation attached to his principal
office. It should be obvious that if, say, the Secretary of Finance attends a meeting of
the Monetary Board as an ex-officiomember thereof, he is actually and in legal
contemplation performing the primary function of his principal office in defining
policy in monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra
compensation, whether it be in the form of a per them or an honorarium or an
allowance, or some other such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.

It is interesting to note that during the floor deliberations on the proposal of

Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally
found as Section 3 of the General Provisions, the exception "unless required by the
functions of his position," 36 express reference to certain high-ranking appointive
public officials like members of the Cabinet were made. 37 Responding to a query of
Commissioner Blas Ople, Commissioner Monsod pointed out that there are
instances when although not required by current law, membership of certain high-
ranking executive officials in other offices and corporations is necessary by reason of
said officials' primary functions. The example given by Commissioner Monsod was
the Minister of Trade and Industry. 38

While this exchange between Commissioners Monsod and Ople may be used as
authority for saying that additional functions and duties flowing from the primary
functions of the official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot, however, be taken as
authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-
XB. This colloquy between the two Commissioners took place in the plenary session
of September 27, 1986. Under consideration then was Section 3 of Committee
Resolution No. 531 which was the proposed article on General Provisions. 39 At that
time, the article on the Civil Service Commission had been approved on third
reading on July 22, 1986, 40 while the article on the Executive Department,
containing the more specific prohibition in Section 13, had also been earlier
approved on third reading on August 26, 1986. 41 It was only after the draft
Constitution had undergone reformatting and "styling" by the Committee on Style
that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-
B and reworded "Unless otherwise allowed by law or by the primary functions of his
position. . . ."
What was clearly being discussed then were general principles which would serve as
constitutional guidelines in the absence of specific constitutional provisions on the
matter. What was primarily at issue and approved on that occasion was the
adoption of the qualified and delimited phrase "primary functions" as the basis of an
exception to the general rule covering all appointive public officials. Had the
Constitutional Commission intended to dilute the specific prohibition in said
Section 13 of Article VII, it could have re-worded said Section 13 to conform to the
wider exceptions provided in then Section 3 of the proposed general Provisions, later
placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.

That this exception would in the final analysis apply also to the President and his
official family is by reason of the legal principles governing additional functions and
duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At
any rate, we have made it clear that only the additional functions and duties
"required," as opposed to "allowed," by the primary functions may be considered as
not constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of

the constitutional convention in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only when other guides fail 42 as
said proceedings are powerless to vary the terms of the Constitution when the
meaning is clear.1wphi1Debates in the constitutional convention "are of value as
showing the views of the individual members, and as indicating the reasons for their
votes, but they give us no light as to the views of the large majority who did not talk,
much less of the mass of our fellow citizens whose votes at the polls gave that
instrument the force of fundamental law. We think it safer to construe the
constitution from what appears upon its face." 43 The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the
framers's understanding thereof. 44

It being clear, as it was in fact one of its best selling points, that the 1987
Constitution seeks to prohibit the President, Vice-President, members of the
Cabinet, their deputies or assistants from holding during their tenure multiple
offices or employment in the government, except in those cases specified in the
Constitution itself and as above clarified with respect to posts held without
additional compensation in an ex-officio capacity as provided by law and as required
by the primary functions of their office, the citation of Cabinet members (then called
Ministers) as examples during the debate and deliberation on the general rule laid
down for all appointive officials should be considered as mere personal opinions
which cannot override the constitution's manifest intent and the people'
understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section
7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July
23, 1987 is unconstitutional. Ostensibly restricting the number of positions that
Cabinet members, undersecretaries or assistant secretaries may hold in addition to
their primary position to not more than two (2) positions in the government and
government corporations, Executive Order No. 284 actually allows them to hold
multiple offices or employment in direct contravention of the express mandate of
Section 13, Article VII of the 1987 Constitution prohibiting them from doing so,
unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result
from a strict application of the prohibition mandated under Section 13, Article VII
on the operations of the Government, considering that Cabinet members would be
stripped of their offices held in an ex-officio capacity, by reason of their primary
positions or by virtue of legislation. As earlier clarified in this decision, ex-
officio posts held by the executive official concerned without additional compensation
as provided by law and as required by the primary functions of his office do not fall
under the definition of "any other office" within the contemplation of the
constitutional prohibition. With respect to other offices or employment held by
virtue of legislation, including chairmanships or directorships in government-owned
or controlled corporations and their subsidiaries, suffice it to say that the feared
impractical consequences are more apparent than real. Being head of an executive
department is no mean job. It is more than a full-time job, requiring full attention,
specialized knowledge, skills and expertise. If maximum benefits are to be derived
from a department head's ability and expertise, he should be allowed to attend to
his duties and responsibilities without the distraction of other governmental offices
or employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage of our
national and economic development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and taking in more than
what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby
orders respondents Secretary of Environment and Natural Resources Fulgencio
Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National
Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of
the Budget Guillermo Carague to immediately relinquish their other offices or
employment, as herein defined, in the government, including government-owned or
controlled corporations and their subsidiaries. With respect to the other named
respondents, the petitions have become moot and academic as they are no longer
occupying the positions complained of.

During their tenure in the questioned positions, respondents may be considered de

facto officers and as such entitled to emoluments for actual services rendered. 46 It
has been held that "in cases where there is no de jure,officer, a de facto officer, who,
in good faith has had possession of the office and has discharged the duties
pertaining thereto, is legally entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other compensations attached to the
office. This doctrine is, undoubtedly, supported on equitable grounds since it seems
unjust that the public should benefit by the services of an officer de facto and then
be freed from all liability to pay any one for such services. 47 Any per diem,
allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them.

WHEREFORE, subject to the qualification above-stated, the petitions are

GRANTED. Executive Order No. 284 is hereby declared null and void and is
accordingly set aside.

SO ORDERED.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,

Padilla, Bidin, Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento and Grio-Aquino, JJ., took no part.
 ROMULO L. NERI, G.R. No. 180643
Petitioner,
Present:

- versus - PUNO, C.J.,

QUISUMBING,
YNARES-SANTIAGO,
SENATE COMMITTEE ON CARPIO,
ACCOUNTABILITY OF AUSTRIA-MARTINEZ,
PUBLIC OFFICERS AND CORONA,
INVESTIGATIONS, SENATE CARPIO MORALES,
COMMITTEE ON TRADE AND AZCUNA,
TINGA,
COMMERCE, AND SENATE
CHICO-NAZARIO,
COMMITTEE ON NATIONAL
VELASCO, JR.,
DEFENSE AND SECURITY,
NACHURA,
Respondents.
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

Promulgated:

March 25, 2008

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

DECISION

LEONARDO-DE CASTRO, J.:

At bar is a petition for certiorari under Rule 65 of the Rules of Court
assailing the show cause Letter[1] dated November 22, 2007 and
contempt Order [2]
dated January 30, 2008 concurrently issued by respondent
Senate Committees on Accountability of Public Officers and Investigations, [3] Trade
and Commerce,[4] and National Defense and Security[5] against petitioner Romulo L.
Neri,former Director General of the National Economic and Development Authority
(NEDA).

The facts, as culled from the pleadings, are as follows:

On April 21, 2007, the Department of Transportation and Communication (DOTC)

entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for
the supply of equipment and services for the National Broadband Network (NBN)
Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The
Project was to be financed by the Peoples Republic of China.

In connection with this NBN Project, various Resolutions were introduced in the
Senate, as follows:
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr.,
entitled RESOLUTION DIRECTING THE BLUE RIBBON
COMMITTEE AND THE COMMITTEE ON TRADE AND INDUSTRY
TO INVESTIGATE, IN AID OF LEGISLATION, THE
CIRCUMSTANCES LEADING TO THE APPROVAL OF THE
BROADBAND CONTRACT WITH ZTE AND THE ROLE PLAYED BY
THE OFFICIALS CONCERNED IN GETTING IT CONSUMMATED
AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS
OF LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN
CONNECTION THEREWITH AND TO PLUG THE LOOPHOLES, IF
ANY IN THE BOT LAW AND OTHER PERTINENT LEGISLATIONS.

(2) P.S. Res. No. 144, introduced by Senator Mar Roxas,

entitled RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL
ARROYO TO DIRECT THE CANCELLATION OF THE ZTE
CONTRACT

(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson,

entitled RESOLUTION DIRECTING THE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY TO CONDUCT AN
INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL
SECURITY IMPLICATIONS OF AWARDING THE NATIONAL
BROADBAND NETWORK CONTRACT TO THE CHINESE FIRM
 ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY
LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF
PROVIDING REMEDIAL LEGISLATION THAT WILL PROTECT
OUR NATIONAL SOVEREIGNTY, SECURITY AND TERRITORIAL
INTEGRITY.

(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor

Santiago, entitled RESOLUTION DIRECTING THE PROPER
SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF
LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION
OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF
THE NATIONAL GOVERNMENT.

At the same time, the investigation was claimed to be relevant to the consideration
of three (3) pending bills in the Senate, to wit:

1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled

AN ACT SUBJECTING TREATIES, INTERNATIONAL OR
EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE
PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS,
AND CONSULTING SERVICES TO BE INCLUDED IN THE
SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT
LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO.
9184, OTHERWISE KNOWN AS THE GOVERNMENT
PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES;

2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled

AN ACT IMPOSING SAFEGUARDS IN CONTRACTING LOANS
CLASSIFIED AS OFFICIAL DEVELOPMENT ASSISTANCE,
AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS
AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN
AS THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996,
AND FOR OTHER PURPOSES; and

3. Senate Bill No. 1317, introduced by Senator Miriam Defensor

Santiago, entitled AN ACT MANDATING CONCURRENCE TO
 INTERNATIONAL AGREEMENTS AND EXECUTIVE
AGREEMENTS.

Respondent Committees initiated the investigation by sending invitations to certain

personalities and cabinet officials involved in the NBN Project. Petitioner was
among those invited. He was summoned to appear and testify on September 18, 20,
and 26 and October 25, 2007. However, he attended only the September 26 hearing,
claiming he was out of town during the other dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified that
several high executive officials and power brokers were using their influence to push
the approval of the NBN Project by the NEDA. It appeared that the Project was
initially approved as a Build-Operate-Transfer (BOT) project but, on March 29,
2007, the NEDA acquiesced to convert it into a government-to-government project,
to be financed through a loan from the Chinese Government.

On September 26, 2007, petitioner testified before respondent Committees for eleven
(11) hours. He disclosed that then Commission on Elections (COMELEC) Chairman
Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN
Project. He further narrated that he informed President Arroyo about the bribery
attempt and that she instructed him not to accept the bribe. However, when probed
further on what they discussed about the NBN Project, petitioner refused to answer,
invoking executive privilege. In particular, he refused to answer the questions
on (a) whether or not President Arroyo followed up the NBN Project, [6] (b) whether
or not she directed him to prioritize it, [7] and (c) whether or not she directed him to
approve.[8]

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to

petitioner, requiring him to appear and testify on November 20, 2007.

However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R.
Ermita requested respondent Committees to dispense with petitioners testimony on
the ground of executive privilege. The pertinent portion of the letter reads:
With reference to the subpoena ad testificandum issued to Secretary
Romulo Neri to appear and testify again on 20 November 2007 before
the Joint Committees you chair, it will be recalled that Sec. Neri had
already testified and exhaustively discussed the ZTE / NBN project,
including his conversation with the President thereon last 26
September 2007.

Asked to elaborate further on his conversation with the President, Sec.

Neri asked for time to consult with his superiors in line with the ruling
of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).

Specifically, Sec. Neri sought guidance on the possible invocation of

executive privilege on the following questions, to wit:

a) Whether the President followed up the (NBN)

project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve
the project after being told about the alleged bribe?

Following the ruling in Senate v. Ermita, the foregoing questions fall

under conversations and correspondence between the President and
public officials which are considered executive privilege (Almonte v.
Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
2002). Maintaining the confidentiality of conversations of the President
is necessary in the exercise of her executive and policy decision making
process. The expectation of a President to the confidentiality of her
conversations and correspondences, like the value which we accord
deference for the privacy of all citizens, is the necessity for protection of
the public interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making. Disclosure of conversations
of the President will have a chilling effect on the President, and will
hamper her in the effective discharge of her duties and responsibilities,
if she is not protected by the confidentiality of her conversations.
 The context in which executive privilege is being invoked is that the
information sought to be disclosed might impair our diplomatic as well
as economic relations with the Peoples Republic ofChina. Given the
confidential nature in which these information were conveyed to the
President, he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the privilege is
designed to protect.

In light of the above considerations, this Office is constrained to invoke

the settled doctrine of executive privilege as refined in Senate v.
Ermita, and has advised Secretary Neri accordingly.

Considering that Sec. Neri has been lengthily interrogated on the

subject in an unprecedented 11-hour hearing, wherein he has
answered all questions propounded to him except the foregoing
questions involving executive privilege, we therefore request that his
testimony on 20 November 2007 on the ZTE / NBN project be
dispensed with.

On November 20, 2007, petitioner did not appear before respondent

Committees. Thus, on November 22, 2007, the latter issued the show
cause Letter requiring him to explain why he should not be cited in contempt. The
Letter reads:

Since you have failed to appear in the said hearing, the Committees on
Accountability of Public Officers and Investigations (Blue Ribbon),
Trade and Commerce and National Defense and Security require you
to show cause why you should not be cited in contempt under Section 6,
Article 6 of the Rules of the Committee on Accountability of Public
Officers and Investigations (Blue Ribbon).

The Senate expects your explanation on or before 2 December 2007.

On November 29, 2007, petitioner replied to respondent Committees,

manifesting that it was not his intention to ignore the Senate hearing and that he
thought the only remaining questions were those he claimed to be covered by
executive privilege, thus:

It was not my intention to snub the last Senate hearing. In fact,

I have cooperated with the task of the Senate in its inquiry in aid of
legislation as shown by my almost 11 hours stay during the hearing
on 26 September 2007. During said hearing, I answered all the
questions that were asked of me, save for those which I thought was
covered by executive privilege, and which was confirmed by the
Executive Secretary in his Letter 15 November 2007. In good faith,
after that exhaustive testimony, I thought that what remained were
only the three questions, where the Executive Secretary claimed
executive privilege. Hence, his request that my presence be dispensed
with.

Be that as it may, should there be new matters that were not yet
taken up during the 26 September 2007 hearing, may I be furnished in
advance as to what else I need to clarify, so that as a resource person, I
may adequately prepare myself.

In addition, petitioner submitted a letter prepared by his counsel, Atty.

Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-appearance
was upon the order of the President; and (2) his conversation with President Arroyo
dealt with delicate and sensitive national security and diplomatic matters relating
to the impact of the bribery scandal involving high government officials and the
possible loss of confidence of foreign investors and lenders in the Philippines. The
letter ended with a reiteration of petitioners request that he be furnished in
advance as to what else he needs to clarify so that he may adequately prepare for
the hearing.
In the interim, on December 7, 2007, petitioner filed with this Court the
present petition for certiorari assailing the show cause Letter dated November 22,
2007.

Respondent Committees found petitioners explanations

unsatisfactory. Without responding to his request for advance notice of the matters
that he should still clarify, they issued the Order dated January 30, 2008, citing
him in contempt of respondent Committees and ordering his arrest and detention at
the Office of the Senate Sergeant-At-Arms until such time that he would appear and
give his testimony. The said Order states:

ORDER

For failure to appear and testify in the Committees hearing on

Tuesday, September 18, 2007; Thursday, September 20, 2007;
Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite
personal notice and Subpoenas Ad Testificandum sent to and received
by him, which thereby delays, impedes and obstructs, as it has in fact
delayed, impeded and obstructed the inquiry into the subject reported
irregularities, AND for failure to explain satisfactorily why he should
not be cited for contempt (Neri letter of 29 November 2007), herein
attached) ROMULO L. NERI is hereby cited in contempt of this
(sic) Committees and ordered arrested and detained in the
Office of the Senate Sergeant-At-Arms until such time that he
will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out and

implement this Order and make a return hereof within twenty four
(24) hours from its enforcement.

SO ORDERED.

On the same date, petitioner moved for the reconsideration of the above
[9]
Order. He insisted that he has not shown any contemptible conduct worthy of
contempt and arrest. He emphasized his willingness to testify on new matters,
however, respondent Committees did not respond to his request for advance notice of
questions. He also mentioned the petition for certiorari he filed on December 7,
2007. According to him, this should restrain respondent Committees from enforcing
the show cause Letter through the issuance of declaration of contempt and arrest.

In view of respondent Committees issuance of the contempt Order, petitioner filed

on February 1, 2008 a Supplemental Petition for Certiorari (With Urgent Application
for TRO/Preliminary Injunction), seeking to restrain the implementation of the said
contempt Order.

On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining
respondent Committees from implementing their contempt Order, (b) requiring the
parties to observe the status quo prevailing prior to the issuance of the assailed
order, and (c) requiring respondent Committees to file their comment.

Petitioner contends that respondent Committees show cause Letter and

contempt Order were issued with grave abuse of discretion
amounting to lack or excess ofjurisdiction. He stresses that his conversations with
President Arroyo are candid discussions meant to explore options in making
policy decisions. According to him, these discussions dwelt on the impact of
the bribery scandal involving high government officials on the countrys
diplomatic relations and economic and military affairs and the possible
loss of confidence of foreign investors and lenders in the Philippines. He
also emphasizes that his claim of executive privilege is upon the order of the
President and within the parameters laid down in Senate v. Ermita[10] and United
States v. Reynolds.[11] Lastly, he argues that he is precluded from disclosing
communications made
to him in official confidence under Section 7[12] of Republic Act No. 6713,
otherwise known as Code of Conduct and Ethical Standards for Public Officials and
Employees, and Section 24[13] (e) of Rule 130 of the Rules of Court.

Respondent Committees assert the contrary. They argue that (1) petitioners
testimony is material and pertinent in the investigation conducted in aid of
legislation; (2) there is no valid justification for petitioner to claim executive
privilege; (3) there is no abuse of their authority to order petitioners arrest;
and (4) petitioner has not come to court with clean hands.

In the oral argument held last March 4, 2008, the following issues were
ventilated:

1. What communications between the President and petitioner Neri

are covered by the principle of executive privilege?
1.a Did Executive Secretary Ermita correctly invoke the principle of
executive privilege, by order of the President, to
cover (i) conversations of the President in the exercise of her
executive and policy decision-making and (ii) information, which
might impair our diplomatic as well as economic relations with
the Peoples Republic of China?

1.b. Did petitioner Neri correctly invoke executive privilege to avoid

testifying on his conversations with the President on the NBN
contract on his assertions that the said conversationsdealt with
delicate and sensitive national security and diplomatic
matters relating to the impact of bribery scandal
involving high government officials and the possible loss
of confidence of foreign investors and lenders in the
Philippines x x x within the principles laid down in Senate v.
Ermita (488 SCRA 1 [2006])?

1.c Will the claim of executive privilege in this case violate the
following provisions of the Constitution:

Sec. 28, Art. II (Full public disclosure of all transactions

involving public interest)

Sec. 7, Art. III (The right of the people to information on

matters of public concern)

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure that the laws be
faithfully executed)

and the due process clause and the principle of separation of

powers?
 2. What is the proper procedure to be followed in invoking executive
privilege?

3. Did the Senate Committees gravely abuse their discretion in

ordering the arrest of petitioner for non-compliance with the
subpoena?

After the oral argument, the parties were directed to manifest to the Court
within twenty-four (24) hours if they are amenable to the Courts proposal of
allowing petitioner to immediately resume his testimony before the Senate
Committees to answer the other questions of the Senators without prejudice to the
decision on the merits of this pending petition. It was understood that petitioner
may invoke executive privilege in the course of the Senate Committees proceedings,
and if the respondent Committees disagree thereto, the unanswered questions will
be the subject of a supplemental pleading to be resolved along with the three (3)
questions subject of the present petition.[14] At the same time, respondent
Committees were directed to submit several pertinent documents. [15]
The Senate did not agree with the proposal for the reasons stated in the
Manifestation dated March 5, 2008. As to the required documents, the Senate and
respondent Committees manifested that they would not be able to submit the latters
Minutes of all meetings and the Minute Book because it has never been the
historical and traditional legislative practice to keep them. [16] They instead
submitted the Transcript of Stenographic Notes of respondent Committees joint
public hearings.

On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave
to Intervene and to Admit Attached Memorandum, founded on the following
arguments:

(1) The communications between petitioner and the President are

covered by the principle of executive privilege.

(2) Petitioner was not summoned by respondent Senate Committees

in accordance with the law-making bodys power to conduct inquiries
 in aid of legislation as laid down in Section 21, Article VI of the
Constitution and Senate v. Ermita.

(3) Respondent Senate Committees gravely abused its discretion for

alleged non-compliance with the Subpoena dated November 13,
2007.

The Court granted the OSGs motion the next day, March 18, 2008.

As the foregoing facts unfold, related events transpired.

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151,

revoking Executive Order No. 464 and Memorandum Circular No. 108. She advised
executive officials and employees to follow and abide by the Constitution, existing
laws and jurisprudence, including, among others, the case of Senate v.
Ermita[17] when they are invited to legislative inquiries in aid of legislation.
At the core of this controversy are the two (2) crucial queries, to wit:

First, are the communications elicited by the subject three (3) questions
covered by executive privilege?

And second, did respondent Committees commit grave abuse of discretion in

issuing the contempt Order?

We grant the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita[18] becomes

imperative. Senate draws in bold strokes the distinction between
the legislative andoversight powers of the Congress, as embodied under Sections
21 and 22, respectively, of Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or

any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure.
The rights of persons appearing in or affected by such inquiries shall
be respected.
 SECTION 22. The heads of department may upon their own initiative,
with the consent of the President, or upon the request of either House,
or as the rules of each House shall provide, appear before and be heard
by such House on any matter pertaining to their departments. Written
questions shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days before
their scheduled appearance. Interpellations shall not be limited to
written questions, but may cover matters related thereto. When the
security of the state or the public interest so requires and the
President so states in writing, the appearance shall be conducted in
executive session.

Senate cautions that while the above provisions are closely related and
complementary to each other, they should not be considered as pertaining to the
same power of Congress. Section 21 relates to the power to conduct inquiries in aid
of legislation. Its aim is to elicit information that may be used for legislation. On the
other hand, Section 22 pertains to the power to conduct a question hour, the
objective of which is to obtain information in pursuit of Congress oversight function.
[19]
Simply stated, while both powers allow Congress or any of its committees to
conduct inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of
compulsory process. Unlike in Section 21, Congress cannot compel the appearance
of executive officials under Section 22. The Courts pronouncement in Senate v.
Ermita[20] is clear:

When Congress merely seeks to be informed on how department

heads are implementing the statutes which it has issued, its right to
such information is not as imperative as that of the President to whom,
as Chief Executive, such department heads must give a report of their
performance as a matter of duty. In such instances, Section 22, in
keeping with the separation of powers, states that Congress may
only request their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is in aid of legislation under
 Section 21, the appearance is mandatory for the same reasons stated
in Arnault.

In fine, the oversight function of Congress may be

facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation. This is consistent with the
intent discerned from the deliberations of the Constitutional
Commission
Ultimately, the power of Congress to compel the appearance of
executive officials under section 21 and the lack of it under Section 22
find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot
frustrate the power of Congress to legislate by refusing to comply with
its demands for information. (Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in
this case has also been settled in Senate v. Ermita, when it held:

As evidenced by the American experience during the so-called

McCarthy era, however, the right of Congress to conduct inquiries in aid
of legislation is, in theory, no less susceptible to abuse than executive or
judicial power. It may thus be subjected to judicial review pursuant to
the Courts certiorari powers under Section 1, Article VIII of the
Constitution.

Hence, this decision.

I
The Communications Elicited by the Three (3)
Questions are Covered by Executive Privilege

We start with the basic premises where the parties have conceded.
 The power of Congress to conduct inquiries in aid of legislation is broad. This
is based on the proposition that a legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change.[21] Inevitably, adjunct thereto is the
compulsory process to enforce it. But, the power, broad as it is, has limitations. To
be valid, it is imperative that it is done in accordance with the Senate or House duly
published rules of procedure and that the rights of the persons appearing in or
affected by such inquiries be respected.

The power extends even to executive officials and the only way for them to be
exempted is through a valid claim of executive privilege. [22] This directs us to the
consideration of the question -- is there a recognized claim of executive
privilege despite the revocation of E.O. 464?

A- There is a Recognized Claim

of Executive Privilege Despite the
Revocation of E.O. 464

At this juncture, it must be stressed that the revocation of E.O. 464 does not in any
way diminish our concept of executive privilege. This is because this concept has
Constitutional underpinnings. Unlike the United States which has further
accorded the concept with statutory status by enacting the Freedom of Information
Act[23] and theFederal Advisory Committee Act,[24] the Philippines has retained its
constitutional origination, occasionally interpreted only by this Court in various
cases. The most recent of these is the case of Senate v. Ermita where this Court
declared unconstitutional substantial portions of E.O. 464. In this regard, it is
worthy to note that Executive Ermitas Letter dated November 15, 2007 limits its
bases for the claim of executive privilege to Senate v. Ermita, Almonte v. Vasquez,
[25]
and Chavez v. PEA.[26] There was never a mention of E.O. 464.
While these cases, especially Senate v. Ermita,[27] have comprehensively discussed
the concept of executive privilege, we deem it imperative to explore it once more in
view of the clamor for this Court to clearly define the communications covered by
executive privilege.

The Nixon and post-Watergate cases established the broad contours of

the presidential communications privilege. [28]
In United States v. Nixon,
[29]
the U.S. Courtrecognized a great public interest in preserving the
confidentiality of conversations that take place in the Presidents
performance of his official duties. It thus considered presidential
communications as presumptively privileged. Apparently, the presumption is
founded on the Presidents generalized interest in confidentiality. The
privilege is said to be necessary to guarantee the candor of presidential advisors
and to provide the President and those who assist him with freedom to
explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express except
privately.

In In Re: Sealed Case,[30] the U.S. Court of Appeals delved deeper. It ruled
that there are two (2) kinds of executive privilege; one is
the presidential communicationsprivilege and, the other is the deliberative
process privilege. The former pertains to communications, documents or
other materials that reflect presidential decision-making and
deliberations and that the President believes should remain
confidential. The latter includes advisory opinions, recommendations and
deliberations comprising part of a process by which governmental
decisions and policies are formulated.
Accordingly, they are characterized by marked distinctions. Presidential
communications privilege applies to decision-making of the
President while, the deliberative process privilege, to decision-making
of executive officials. The first is rooted in the constitutional principle of
separation of power and the Presidents unique constitutional
role; the second on common law privilege. Unlike the deliberative process
privilege, the presidential communications privilege applies to documents
in their entirety, and covers final and post-decisional materials as well as
pre-deliberative ones[31] As a consequence, congressional or judicial negation of
the presidential communications privilege is always subject to greater scrutiny
than denial of the deliberative process privilege.
Turning on who are the officials covered by the presidential communications
privilege, In Re: Sealed Case confines the privilege only to White House Staff that
has operational proximity to direct presidential decision-making. Thus, the privilege
is meant to encompass only those functions that form the core of
presidential authority, involving what the court characterized as quintessential and
non-delegable Presidential power, such as commander-in-chief power, appointment
and removal power, the power to grant pardons and reprieves, the sole-authority to
receive ambassadors and other public officers, the power to negotiate treaties, etc. [32]

The situation in Judicial Watch, Inc. v. Department of Justice [33] tested the In Re:
Sealed Case principles. There, while the presidential decision involved is the
exercise of the Presidents pardon power, a non-delegable, core-presidential function,
the Deputy Attorney General and the Pardon Attorney were deemed to be too
remote from the President and his
senior White House advisors to be protected. The Court conceded that

functionally those officials were performing a task directly related to the Presidents
pardon power, but concluded that an organizational test was more appropriate for
confining the potentially broad sweep that would result from the In Re: Sealed
Cases functional test. The majority concluded that, the lesser protections of the
deliberative process privilege would suffice. That privilege was, however, found
insufficient to justify the confidentiality of the 4,341 withheld documents.

But more specific classifications of communications covered by executive privilege

are made in older cases. Courts ruled early that the Executive has a right to
withhold documents that might reveal military or state secrets,[34] identity of
government informers in some circumstances,,[35] and information related
to pending investigations.[36] An area where the privilege is highly revered is
in foreign relations. In United States v. Curtiss-Wright Export Corp.[37] the U.S.
Court, citing President George Washington, pronounced:

The nature of foreign negotiations requires caution, and their

success must often depend on secrecy, and even when brought to a
conclusion, a full disclosure of all the measures, demands, or eventual
concessions which may have been proposed or contemplated would be
extremely impolitic, for this might have a pernicious influence on
future negotiations or produce immediate inconveniences, perhaps
danger and mischief, in relation to other powers. The necessity of such
caution and secrecy was one cogent reason for vesting the power of
making treaties in the President, with the advice and consent of the
 Senate, the principle on which the body was formed confining it to a
small number of members. To admit, then, a right in the House of
Representatives to demand and to have as a matter of course all the
papers respecting a negotiation with a foreign power would be to
establish a dangerous precedent.

Majority of the above jurisprudence have found their way in our

jurisdiction. In Chavez v. PCGG[38], this Court held that there is a governmental
privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other security matters. In Chavez v. PEA,[39] there is also a
recognition of the confidentiality of Presidential conversations, correspondences,
and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept
of presidential communications privilege is fully discussed.

As may be gleaned from the above discussion, the claim of executive privilege
is highly recognized in cases where the subject of inquiry relates to a power
textually committed by the Constitution to the President, such as the area of
military and foreign relations. Under our Constitution, the President is the
repository of the commander-in-chief,[40] appointing,[41] pardoning,[42] and
diplomatic[43] powers. Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater confidentiality than others.

The above cases, especially, Nixon, In Re Sealed Case and Judicial

Watch, somehow provide the elements of presidential communications
privilege, to wit:

1) The protected communication must relate to a quintessential and

non-delegable presidential power.

2) The communication must be authored or solicited and received by a

close advisor of the President or the President himself. The
judicial test is that an advisor must be in operational proximity
with the President.
 3) The presidential communications privilege remains a qualified
privilege that may be overcome by a showing of adequate need,
such that the information sought likely contains important
evidence and by the unavailability of the information elsewhere
by an appropriate investigating authority.[44]

In the case at bar, Executive Secretary Ermita premised his claim of executive
privilege on the ground that the communications elicited by the three (3)
questions fall under conversation and correspondence between the President and
public officials necessary in her executive and policy decision-making process and,
that the information sought to be disclosed might impair our diplomatic as well as
economic relations with the Peoples Republic of China. Simply put, the bases
are presidential communications privilege and executive privilege on matters
relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications
elicited by the three (3) questions are covered by the presidential
communications privilege.First, the communications relate to a quintessential
and non-delegable power of the President, i.e. the power to enter into an executive
agreement with other countries. This authority of the President to enter
into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence. [45] Second,the
communications are received by a close advisor of the President. Under the
operational proximity test, petitioner can be considered a close advisor, being a
member of President Arroyos cabinet. And third, there is no adequate showing of a
compelling need that would justify the limitation of the privilege and of
the unavailability of the information elsewhere by an appropriate investigating
authority.
The third element deserves a lengthy discussion.

United States v. Nixon held that a claim of executive privilege is subject

to balancing against other interest. In other words, confidentiality in executive
privilege is not absolutely protected by the Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need for

confidentiality of high-level communications, without more, can
 sustain an absolute, unqualified Presidential privilege of immunity
from judicial process under all circumstances.

The foregoing is consistent with the earlier case of Nixon v. Sirica,[46] where it was
held that presidential communications are presumptively privileged and that
the presumption can be overcome only by mere showing of public need by the branch
seeking access to conversations. The courts are enjoined to resolve the competing
interests of the political branches of the government in the manner that preserves
the essential functions of each Branch. [47] Here, the record is bereft of any
categorical explanation from respondent Committees to show a compelling or citical
need for the answers to the three (3) questions in the enactment of a law. Instead,
the questions veer more towards the exercise of the legislative oversight function
under Section 22 of Article VI rather than Section 21 of the same Article. Senate v.
Ermita ruled that the the oversight function of Congress may be facilitated
by compulsory process only to the extent that it is performed in pursuit of
legislation. It is conceded that it is difficult to draw the line between an inquiry in
aid of legislation and an inquiry in the exercise of oversight function of Congress. In
this regard, much will depend on the content of the questions and the manner the
inquiry is conducted.

Respondent Committees argue that a claim of executive privilege does not

guard against a possible disclosure of a crime or wrongdoing. We see no dispute on
this. It is settled in United States v. Nixon[48] that demonstrated, specific need for
evidence in pending criminal trial outweighs the Presidents generalized interest
in confidentiality.However, the present cases distinction with the Nixon case is very
evident. In Nixon, there is a pending criminal proceeding where the information is
requested and it is the demands of due process of law and the fair administration
of criminal justice that the information be disclosed. This is the reason why the U.S.
Court was quick to limit the scope of its decision. It stressed that it is not
concerned here with the balance between the Presidents generalized
interest in confidentiality x x x and congressional demands for
information. Unlike in Nixon, the information here is elicited, not in a criminal
proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed
that the validity of the claim of executive privilege depends not only on the ground
invoked but, also, on the procedural setting or the context in which the claim is
made. Furthermore, in Nixon,the President did not interpose any claim of need to
protect military, diplomatic or sensitive national security secrets. In the present
case, Executive Secretary Ermita categorically claims executive privilege on the
grounds of presidential communications privilege in relation to her executive
and policy decision-making process and diplomatic secrets.

The respondent Committees should cautiously tread into the investigation of

matters which may present a conflict of interest that may provide a ground to
inhibit the Senators participating in the inquiry if later on an impeachment
proceeding is initiated on the same subject matter of the present Senate
inquiry. Pertinently, in Senate Select Committee on Presidential Campaign
Activities v. Nixon,[49] it was held that since an impeachment proceeding had been
initiated by a House Committee, the Senate Select Committees immediate oversight
need for five presidential tapes should give way to the House Judiciary Committee
which has the constitutional authority to inquire into presidential impeachment.
The Court expounded on this issue in this wise:

It is true, of course, that the Executive cannot, any more than

the other branches of government, invoke a general confidentiality
privilege to shield its officials and employees from investigations by the
proper governmental institutions into possible criminal
wrongdoing. The Congress learned this as to its own privileges
in Gravel v. United States, as did the judicial branch, in a sense,
in Clark v. United States, and the executive branch itself in Nixon v.
Sirica. But under Nixon v. Sirica, the showing required to
overcome the presumption favoring confidentiality turned, not
on the nature of the presidential conduct that the subpoenaed material
might reveal, but, instead, on the nature and appropriateness of
the function in the performance of which the material was
sought, and the degree to which the material was necessary to
its fulfillment. Here also our task requires and our decision
implies no judgment whatever concerning possible
presidential involvement in culpable activity. On the contrary,
we think the sufficiency of the Committee's showing must
depend solely on whether the subpoenaed evidence is
demonstrably critical to the responsible fulfillment of the
Committee's functions.
 In its initial briefs here, the Committee argued that it has
shown exactly this. It contended that resolution, on the basis of the
subpoenaed tapes, of the conflicts in the testimony before it would aid
in a determination whether legislative involvement in political
campaigns is necessary and could help engender the public support
needed for basic reforms in our electoral system.Moreover, Congress
has, according to the Committee, power to oversee the operations of the
executive branch, to investigate instances of possible corruption and
malfeasance in office, and to expose the results of its investigations to
public view. The Committee says that with respect to Watergate-
related matters, this power has been delegated to it by the Senate, and
that to exercise its power responsibly, it must have access to the
subpoenaed tapes.

We turn first to the latter contention. In the circumstances of

this case, we need neither deny that the Congress may have, quite
apart from its legislative responsibilities, a general oversight power,
nor explore what the lawful reach of that power might be under the
Committee's constituent resolution. Since passage of that resolution,
the House Committee on the Judiciary has begun an inquiry into
presidential impeachment. The investigative authority of the Judiciary
Committee with respect to presidential conduct has an express
constitutional source. x x x We have been shown no evidence
indicating that Congress itself attaches any particular value to
this interest. In these circumstances, we think the need for the
tapes premised solely on an asserted power to investigate and
inform cannot justify enforcement of the Committee's
subpoena.

The sufficiency of the Committee's showing of need has come to

depend, therefore, entirely on whether the subpoenaed materials are
critical to the performance of its legislative functions. There is a clear
difference between Congress' legislative tasks and the responsibility of
a grand jury, or any institution engaged in like functions. While fact-
finding by a legislative committee is undeniably a part of its
task, legislative judgments normally depend more on the
 predicted consequences of proposed legislative actions and
their political acceptability, than on precise reconstruction of
past events; Congress frequently legislates on the basis of conflicting
information provided in its hearings. In contrast, the responsibility of
the grand jury turns entirely on its ability to determine whether there
is probable cause to believe that certain named individuals did or did
not commit specific crimes. If, for example, as in Nixon v. Sirica, one of
those crimes is perjury concerning the content of certain conversations,
the grand jury's need for the most precise evidence, the exact text of
oral statements recorded in their original form, is undeniable. We see
no comparable need in the legislative process, at least not in
the circumstances of this case. Indeed, whatever force there might
once have been in the Committee's argument that the subpoenaed
materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis supplied)

Respondent Committees further contend that the grant of petitioners claim of

executive privilege violates the constitutional provisions on the right of the people to
information on matters of public concern. [50] We might have agreed with such
contention if petitioner did not appear before them at all. But petitioner made
himself available to them during the September 26 hearing, where he was
questioned for eleven (11) hours. Not only that, he expressly manifested his
willingness to answer more questions from the Senators, with the exception only of
those covered by his claim of executive privilege.

The right to public information, like any other right, is subject to

limitation. Section 7 of Article III provides:

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 provision itself expressly provides the limitation, i.e. as may be
provided by law. Some of these laws are Section 7 of Republic Act (R.A.) No. 6713,
[51]
Article 229[52] of the Revised Penal Code, Section 3 (k)[53] of R.A. No. 3019,
and Section 24(e)[54] of Rule 130 of the Rules of Court. These are in addition to what
our body of jurisprudence classifies as confidential [55] and what our Constitution
considers as belonging to the larger concept of executive privilege. Clearly, there is a
recognized public interest in the confidentiality of certain information. We find the
information subject of this case belonging to such kind.

More than anything else, though, the right of Congress or any of its Committees to
obtain information in aid of legislation cannot be equated with the peoples right to
public information. The former cannot claim that every legislative inquiry is an
exercise of the peoples right to information. The distinction between such rights is
laid down in Senate v. Ermita:

There are, it bears noting, clear distinctions between the right of

Congress to information which underlies the power of inquiry and the
right of people to information on matters of public concern. For one, the
demand of a citizen for the production of documents pursuant to his
right to information does not have the same obligatory force as
a subpoena duces tecum issued by Congress. Neither does the right to
information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress, not to an
individual citizen.

Thus, while Congress is composed of representatives elected by

the people, it does not follow, except in a highly qualified sense,
that in every exercise of its power of inquiry, the people are
exercising their right to information.

The members of respondent Committees should not invoke as justification in their

exercise of power a right properly belonging to the people in general. This is because
when they discharge their power, they do so as public officials and members of
Congress. Be that as it may, the right to information must be balanced with and
should give way, in appropriate cases, to constitutional precepts particularly those
pertaining to delicate interplay of executive-legislative powers and privileges which
is the subject of careful review by numerous decided cases.

B- The Claim of Executive Privilege

is Properly Invoked

We now proceed to the issue -- whether the claim is properly invoked by

the President. Jurisprudence teaches that for the claim to be properly invoked,
there must be a formal claim of privilege, lodged by the head of the department
which has control over the matter.[56] A formal and proper claim of executive
privilege requires a precise and certain reason for preserving their confidentiality. [57]

The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the
requirement. It serves as the formal claim of privilege. There, he expressly states
that this Office is constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised Secretary Neri
accordingly. Obviously, he is referring to the Office of the President. That is more
than enough compliance. In Senate v. Ermita, a less categorical letter was even
adjudged to be sufficient.

With regard to the existence of precise and certain reason, we find the grounds
relied upon by Executive Secretary Ermita specific enough so as not to leave
respondent Committees in the dark on how the requested information could be
classified as privileged. The case of Senate v. Ermita only requires that an allegation
be made whether the information demanded involves military or diplomatic secrets,
closed-door Cabinet meetings, etc. The particular ground must only be specified.
The enumeration is not even intended to be comprehensive. [58] The following
statement of grounds satisfies the requirement:

The context in which executive privilege is being invoked is that the

information sought to be disclosed might impair our diplomatic as well
as economic relations with the Peoples Republic ofChina. Given the
confidential nature in which these information were conveyed to the
President, he cannot provide the Committee any further details of
 these conversations, without disclosing the very thing the privilege is
designed to protect.

At any rate, as held further in Senate v. Ermita, [59] the Congress must not require
the executive to state the reasons for the claim with such particularity as to compel
disclosure of the information which the privilege is meant to protect. This is a
matter of respect to a coordinate and co-equal department.

II
Respondent Committees Committed Grave Abuse of
Discretion in Issuing the Contempt Order

Grave abuse of discretion means such capricious and whimsical exercise of

judgment as is equivalent to lack of jurisdiction, or, in other words where the power
is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility and it must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[60]

It must be reiterated that when respondent Committees issued the show

cause Letter dated November 22, 2007, petitioner replied immediately, manifesting
that it was not his intention to ignore the Senate hearing and that he thought the
only remaining questions were the three (3) questions he claimed to be covered by
executive privilege. In addition thereto, he submitted Atty. Bautistas letter, stating
that his non-appearance was upon the order of the President and specifying the
reasons why his conversations with President Arroyo are covered by executive
privilege. Both correspondences include an expression of his willingness to
testify again, provided he be furnished in advance copies of the
questions. Without responding to his request for advance list of questions,
respondent Committees issued the Order dated January 30, 2008, citing him in
contempt of respondent Committees and ordering his arrest and detention at the
Office of the Senate Sergeant-At-Arms until such time that he would appear and
give his testimony.Thereupon, petitioner filed a motion for reconsideration,
informing respondent Committees that he had filed the present petition
for certiorari.
Respondent Committees committed grave abuse of discretion in issuing the
contempt Order in view of five (5) reasons.

First, there being a legitimate claim of executive privilege, the issuance of the
contempt Order suffers from constitutional infirmity.
Second, respondent Committees did not comply with the requirement laid down
in Senate v. Ermita that the invitations should contain the possible needed statute
which prompted the need for the inquiry, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance
thereof. Compliance with this requirement is imperative, both under Sections 21
and 22 of Article VI of the Constitution. This must be so to ensure that the rights of
both persons appearing in or affected by such inquiry are respected as mandated
by said Section 21 and by virtue of the express language of Section
22. Unfortunately, despite petitioners repeated demands, respondent Committees
did not send him an advance list of questions.
Third, a reading of the transcript of respondent Committees January 30,
2008 proceeding reveals that only a minority of the members of the Senate Blue
Ribbon Committee was present during the deliberation. [61] Section 18 of the Rules of
Procedure Governing Inquiries in Aid of Legislation provides that:

The Committee, by a vote of majority of all its members, may

punish for contempt any witness before it who disobeys any order of the
Committee or refuses to be sworn or to testify or to answer proper
questions by the Committee or any of its members.

Clearly, the needed vote is a majority of all the members of the Committee.
Apparently, members who did not actually participate in the deliberation
were made to sign thecontempt Order. Thus, there is a cloud of doubt as to the
validity of the contempt Order dated January 30, 2008. We quote the pertinent
portion of the transcript, thus:

THE CHAIRMAN (SEN. CAYETANO, A). For

clarification. x x x The Chair will call either a caucus or will
ask the Committee on Rules if there is a problem. Meaning, if
we do not have the sufficient numbers. But if we have a
sufficient number, we will just hold a caucus to be able to
implement that right away becauseAgain, our Rules provide
that any one held in contempt and ordered arrested, need the
concurrence of a majority of all members of the said committee
and we have three committees conducting this.

So thank you very much to the members

SEN. PIMENTEL. Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO,A). May I recognize

the Minority Leader and give him the floor, Senator Pimentel.

SEN. PIMENTEL. Mr. Chairman, there is no problem, I

think, with consulting the other committees. But I am of the
opinion that the Blue Ribbon Committee is the lead committee,
and therefore, it should have preference in enforcing its own
decisions. Meaning to say, it is not something that is subject to
consultation with other committees. I am not sure that is the
right interpretation. I think that once we decide here, we
enforce what we decide, because otherwise, before we know it,
our determination is watered down by delay and, you know, the
so-called consultation that inevitably will have to take place if
we follow the premise that has been explained.

So my suggestion, Mr. Chairman, is the Blue Ribbon Committee

should not forget its the lead committee here, and therefore, the will of
the lead committee prevails over all the other, you, know reservations
that other committees might have who are only secondary or even
tertiary committees, Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very

much to the Minority Leader. And I agree with the wisdom of his
statements. I was merely mentioning that under Section 6 of the Rules
of the Committee and under Section 6, The Committee by a vote of a
majority of all its members may punish for contempt any witness
before it who disobeys any order of the Committee.

So the Blue Ribbon Committee is more than willing to take that

responsibility. But we only have six members here today, I am
the seventh as chair and so we have not met that number.So I
am merely stating that, sir, that when we will prepare the
documentation, if a majority of all members sign and I am following
the Sabio v. Gordon rule wherein I do believe, if I am not mistaken,
Chairman Gordon prepared the documentation and then either in
caucus or in session asked the other members to sign. And once the
signatures are obtained, solely for the purpose that Secretary Neri or
Mr. Lozada will not be able to legally question our subpoena as being
insufficient in accordance with law.

SEN. PIMENTEL. Mr. Chairman, the caution that the chair is

suggesting is very well-taken. But Id like to advert to the fact that the
quorum of the committee is only two as far as I remember.Any two-
member senators attending a Senate committee hearing provide that
quorum, and therefore there is more than a quorum demanded by our
Rules as far as we are concerned now, and acting as Blue Ribbon
Committee, as Senator Enrile pointed out. In any event, the signatures
that will follow by the additional members will only tend to strengthen
the determination of this Committee to put its foot forward put down
on what is happening in this country, Mr. Chairman, because it really
looks terrible if the primary Committee of the Senate, which is the
Blue Ribbon Committee, cannot even sanction people who openly defy,
you know, the summons of this Committee. I know that the Chair is
going through an agonizing moment here. I know that.But nonetheless,
I think we have to uphold, you know, the institution that we are
representing because the alternative will be a disaster for all of us, Mr.
Chairman. So having said that, Id like to reiterate my point.

THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100

percent with the intentions of the Minority Leader. But let me very
respectfully disagree with the legal requirements.Because, yes,
 we can have a hearing if we are only two but both under
Section 18 of the Rules of the Senate and under Section 6 of the
Rules of the Blue Ribbon Committee, there is a need for a
majority of all members if it is a case of contempt and
arrest. So, I am simply trying to avoid the court rebuking the
Committee, which will instead of strengthening will weaken us. But I
do agree, Mr. Minority Leader, that we should push for this and show
the executive branch that the well-decided the issue has been decided
upon the Sabio versus Gordon case. And its very clear that we are all
allowed to call witnesses. And if they refure or they disobey not only
can we cite them in contempt and have them arrested. x x x [62]

Fourth, we find merit in the argument of the OSG that respondent Committees
likewise violated Section 21 of Article VI of the Constitution, requiring that the
inquiry be in accordance with the duly published rules of procedure. We quote
the OSGs explanation:
The phrase duly published rules of procedure requires the Senate of
every Congress to publish its rules of procedure governing inquiries in
aid of legislation because every Senate is distinct from the one before it
or after it. Since Senatorial elections are held every three (3) years for
one-half of the Senates membership, the composition of the Senate also
changes by the end of each term. Each Senate may thus enact a
different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation
conducted by the 14thSenate, are therefore, procedurally
infirm.

And fifth, respondent Committees issuance of the contempt Order is

arbitrary and precipitate. It must be pointed out that respondent Committees did
not first pass upon the claim of executive privilege and inform petitioner of their
ruling. Instead, they curtly dismissed his explanation as unsatisfactory and
simultaneously issued the Order citing him in contempt and ordering his immediate
arrest and detention.
A fact worth highlighting is that petitioner is not an unwilling witness. He
manifested several times his readiness to testify before respondent Committees. He
refused to answer the three (3) questions because he was ordered by the President
to claim executive privilege. It behooves respondent Committees to first rule on the
claim of executive privilege and inform petitioner of their finding thereon, instead of
peremptorily dismissing his explanation as unsatisfactory. Undoubtedly,
respondent Committees actions constitute graveabuse of discretion for
being arbitrary and for denying petitioner due process of law. The same
quality afflicted their conduct when they (a) disregarded petitioners motion for
reconsideration alleging that he had filed the present petition before this Court
and (b) ignored petitioners repeated request for an advance list of questions, if there
be any aside from the three (3) questions as to which he claimed to be covered by
executive privilege.

Even the courts are repeatedly advised to exercise the power of contempt
judiciously and sparingly with utmost self-restraint with the end in view of utilizing
the same for correction and preservation of the dignity of the court, not for
retaliation or vindication.[63] Respondent Committees should have exercised the
same restraint, after all petitioner is not even an ordinary witness. He holds a high
position in a co-equal branch of government.

In this regard, it is important to mention that many incidents of judicial

review could have been avoided if powers are discharged with circumspection and
deference. Concomitant with the doctrine of separation of powers is the mandate to
observe respect to a co-equal branch of the government.

One last word.

The Court was accused of attempting to abandon its constitutional duty when it
required the parties to consider a proposal that would lead to a possible
compromise. The accusation is far from the truth. The Court did so, only to test a
tool that other jurisdictions find to be effective in settling similar cases, to avoid a
piecemeal consideration of the questions for review and to avert a constitutional
crisis between the executive and legislative branches of government.
 In United States v. American Tel. & Tel Co.,[64] the court refrained from
deciding the case because of its desire to avoid a resolution that might disturb the
balance of power between the two branches and inaccurately reflect their true needs.
Instead, it remanded the record to the District Court for further proceedings during
which the parties are required to negotiate a settlement. In the subsequent case
of United States v. American Tel. &Tel Co.,[65] it was held that much of this spirit of
compromise is reflected in the generality of language found in the Constitution. It
proceeded to state:

Under this view, the coordinate branches do not exist in an exclusively

adversary relationship to one another when a conflict in authority
arises. Rather each branch should take cognizance of an implicit
constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches in the
particular fact situation.

It thereafter concluded that: The Separation of Powers often impairs

efficiency, in terms of dispatch and the immediate functioning of
government. It is the long-term staying power of government that is
enhanced by the mutual accommodation required by the separation of
powers.

In rendering this decision, the Court emphasizes once more that the basic principles
of constitutional law cannot be subordinated to the needs of a
particular situation. Asmagistrates, our mandate is to rule
objectively and dispassionately, always mindful of Mr. Justice Holmes
warning on the dangers inherent in cases of this nature, thus:

some accident of immediate and overwhelming interestappeals

to the feelings and distorts the judgment. These immediate interests
exercise a kind of hydraulic pressure which makes what previously was
clear seem doubtful, and before which even well settled principles of
law will bend.[66]
 In this present crusade to search for truth, we should turn to the
fundamental constitutional principles which underlie our tripartite system of
government, where the Legislature enacts the law, the Judiciary
interprets it and the Executive implements it. They are considered separate, co-
equal, coordinate and supreme within their respective spheres but, imbued with a
system of checks and balances to prevent unwarranted exercise
of power. The Courts mandate is to preserve these constitutional principles at all
times to keep the political branches of government within constitutional bounds in
the exercise of their respective powers and prerogatives, even if it be in the search
for truth. This is the only way we can preserve the stability of our democratic
institutions and uphold the Rule of Law.

WHEREFORE, the petition is hereby GRANTED. The subject Order

dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of the Senate
Committees and directing his arrest and detention, is hereby nullified.

SO ORDERED.

EN BANC

PROF. RANDOLF S. DAVID, LORENZO G.R. No. 171396

TAADA III, RONALD LLAMAS, H.
HARRY L. ROQUE, JR., JOEL RUIZ
BUTUYAN, ROGER R. RAYEL, GARY S. Present:
MALLARI, ROMEL REGALADO
BAGARES, CHRISTOPHER F.C.
BOLASTIG, PANGANIBAN, C.J.,

Petitioners, *
PUNO,

QUISUMBING,
- versus -
YNARES-SANTIAGO,
 SANDOVAL-GUTIERREZ,

GLORIA MACAPAGAL- CARPIO,

ARROYO, AS PRESIDENT AND
AUSTRIA-MARTINEZ,
COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. CORONA,
AVELINO CRUZ II, SECRETARY OF
CARPIO MORALES,
NATIONAL DEFENSE, GENERAL
GENEROSO SENGA, CHIEF OF STAFF, CALLEJO, SR.,
ARMED FORCES OF THE PHILIPPINES, AZCUNA,
DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE TINGA,
NATIONAL POLICE, CHICO-NAZARIO,
Respondents. GARCIA, and
x-------------------------------------------------x VELASCO, JJ.
NIEZ CACHO-OLIVARES AND
TRIBUNE PUBLISHING CO., INC.,
Promulgated:
Petitioners,

May 3, 2006

- versus -

G.R. No. 171409

HONORABLE SECRETARY EDUARDO

ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO,

Respondents.

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

FRANCIS JOSEPH G. ESCUDERO,

JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO, MARIO
J. AGUJA, SATUR C. OCAMPO, MUJIV S.
HATAMAN, JUAN EDGARDO ANGARA,
TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA,
LIZA L. MAZA, IMEE R. MARCOS,
RENATO B. MAGTUBO, JUSTIN MARC
SB. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA ANN G.R. No. 171485
P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA
THERESIA HONTIVEROS-BARAQUEL,
IMELDA C. NICOLAS, MARVIC M.V.F.
LEONEN, NERI JAVIER COLMENARES,
MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT
INCIONG,

Petitioners,

- versus -

EDUARDO R. ERMITA, EXECUTIVE

SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO,
SECRETARY, DILG, GENEROSO SENGA,
AFP CHIEF OF STAFF, ARTURO
LOMIBAO, CHIEF PNP,

Respondents.

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

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, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE
M. TAN,

Petitioners,

- versus -

G.R. No. 171483

HER EXCELLENCY, PRESIDENT

GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY,
EDUARDO ERMITA, THE CHIEF OF
STAFF, ARMED FORCES OF THE
PHILIPPINES, GENEROSO SENGA, AND
THE PNP DIRECTOR GENERAL,
ARTURO LOMIBAO,

Respondents.
x-------------------------------------------------x

ALTERNATIVE LAW GROUPS, INC.

(ALG),

Petitioner,

- versus -

EXECUTIVE SECRETARY EDUARDO R.

ERMITA, LT. GEN. GENEROSO SENGA,
AND DIRECTOR GENERAL ARTURO
LOMIBAO,

Respondents.

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

JOSE ANSELMO I. CADIZ, FELICIANO

M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR M. AMORADO, ALICIA A.
RISOS-VIDAL, FELIMON C. ABELITA III,
MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA,
ROGELIO V. GARCIA AND INTEGRATED
BAR OF THE PHILIPPINES (IBP),

Petitioners,

- versus -

G.R. No. 171400

HON. EXECUTIVE SECRETARY
EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY
AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO
LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,

Respondents.

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

LOREN B. LEGARDA,

Petitioner,

- versus -

GLORIA MACAPAGAL-ARROYO, IN HER

CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO
G.R. No. 171489
LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE
PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY
AS CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES (AFP);
AND EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY,

Respondents.
 G.R. No. 171424

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

DECISION

SANDOVAL-GUTIERREZ, J.:
 All powers need some restraint; practical adjustments rather than rigid
formula are necessary.[1] Superior strength the use of force cannot make
wrongs into rights. In this regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganibans philosophy of liberty is thus most

relevant. He said: In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the oppressed,
the marginalized, the dispossessed and the weak. Laws and actions that
restrict fundamental rights come to the courts with a heavy presumption against
their constitutional validity.[2]

These seven (7) consolidated petitions for certiorari and prohibition allege that
in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5
(G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in their
professed efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree of liberty,
without which, law becomes tyranny, with the degree of law, without which, liberty
becomes license?[3]

On February 24, 2006, as the nation celebrated the 20 th Anniversary of

the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of
national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of

the Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
 Section 18, Article 7 of the Philippine Constitution which states that:
The President. . . whenever it becomes necessary, . . . may call out
(the) armed forces to prevent or suppress. . .rebellion. . ., and in my
capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion
and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon
my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political

opposition have conspired with authoritarians of the extreme
Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists the historical enemies
of the democratic Philippine State who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly constituted Government elected in
May 2004;

WHEREAS, these conspirators have repeatedly tried to bring

down the President;

WHEREAS, the claims of these elements have been

recklessly magnified by certain segments of the national media;

WHEREAS, this series of actions is hurting the Philippine

State by obstructing governance including hindering the growth
 of the economy and sabotaging the peoples confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the

economy;

WHEREAS, these activities give totalitarian forces of

both the extreme Left and extreme Right the opening to
intensify their avowed aims to bring down the democratic
Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes

the defense and preservation of the democratic institutions and the
State the primary duty of Government;

WHEREAS, the activities above-described, their consequences,

ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of
the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017,

thus:

WHEREAS, over these past months, elements in the political

opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists - the historical enemies of the democratic
Philippine State and who are now in a tactical alliance and engaged
in a concerted and systematic conspiracy, over a broad front, to bring
down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring

down our republican government;

WHEREAS, the claims of these elements have been recklessly

magnified by certain segments of the national media;

WHEREAS, these series of actions is hurting the Philippine

State by obstructing governance, including hindering the growth of the
economy and sabotaging the peoples confidence in the government
and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the

extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the

defense and preservation of the democratic institutions and the State
the primary duty of Government;

WHEREAS, the activities above-described, their consequences,

ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the
Filipino people;
 WHEREAS, Proclamation 1017 date February 24, 2006 has
been issued declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by

virtue of the powers vested in me under the Constitution as President
of the Republic of the Philippines, and Commander-in-Chief of the
Republic of the Philippines, and pursuant to Proclamation No. 1017
dated February 24, 2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), to prevent
and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the
PNP, as well as the officers and men of the AFP and PNP, to
immediately carry out the necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and
lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of

national emergency and after all these petitions had been filed, the President lifted
PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section

17, Article XII of the Constitution, Proclamation No. 1017 dated
February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated

February 24, 2006, which were issued on the basis of Proclamation
No. 1017, the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP), were directed to maintain law and
order throughout the Philippines, prevent and suppress all form of
 lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented,

suppressed and quelled the acts lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-

ARROYO, President of the Republic of the Philippines, by virtue of
the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5,

respondents stated that the proximate cause behind the executive issuances was the
conspiracy among some military officers, leftist insurgents of the New Peoples
Army (NPA), and some members of the political opposition in a plot to unseat or
assassinate President Arroyo.[4] They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No.
5. Significantly, there was no refutation from petitioners counsels.

The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling
out the armed forces. He emphasized that none of the petitioners has shown that
PP 1017 was without factual bases. While he explained that it is not respondents
task to state the facts behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First
Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang,
members of the Magdalo Group indicted in the Oakwood mutiny, escaped their
detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to
remain defiant and to elude arrest at all costs. They called upon the people to
show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands on
our left arms. [5]

On February 17, 2006, the authorities got hold of a document entitled

Oplan Hackle I which detailed plans for bombings and attacks during the
Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President Arroyo
herself.[6] Upon the advice of her security, President Arroyo decided not to attend
the Alumni Homecoming. The next day, at the height of the celebration, a bomb
was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist

safehouse in Batangas province. Found in his possession were two (2) flash disks
containing minutes of the meetings between members of the Magdalo Group and
the National Peoples Army (NPA), a tape recorder, audio cassette cartridges,
diskettes, and copies of subversive documents.[7] Prior to his arrest, Lt. San Juan
announced through DZRH that the Magdalos D-Day would be on February 24,
2006, the 20th Anniversary of Edsa I.

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information

that members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to disavow any defection. The latter promptly obeyed and issued a public
statement: All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty.

On the same day, at the house of former Congressman Peping Cojuangco,

President Cory Aquinos brother, businessmen and mid-level government officials
plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME
Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S.
government official about his groups plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Armys elite Scout Ranger. Lim said it was all systems go for
the planned movement against Arroyo.[8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP),
that a huge number of soldiers would join the rallies to provide a critical mass and
armed component to the Anti-Arroyo protests to be held on February 24,
2005. According to these two (2) officers, there was no way they could possibly stop
the soldiers because they too, were breaking the chain of command to join the forces
foist to unseat the President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took custody of
B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines
Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary

work within the military and the police establishments in order to forge alliances
with its members and key officials. NPA spokesman Gregorio Ka Roger Rosal
declared: The Communist Party and revolutionary movement and the entire people
look forward to the possibility in the coming year of accomplishing its immediate
task of bringing down the Arroyo regime; of rendering it to weaken and unable to
rule that it will not take much longer to end it.[9]

On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: Anti-Arroyo groups
within the military and police are growing rapidly, hastened by the economic
difficulties suffered by the families of AFP officers and enlisted personnel who
undertake counter-insurgency operations in the field. He claimed that with the
forces of the national democratic movement, the anti-Arroyo conservative political
parties, coalitions, plus the groups that have been reinforcing since June 2005, it is
probable that the Presidents ouster is nearing its concluding stage in the first half
of 2006.

Respondents further claimed that the bombing of telecommunication towers

and cell sites in Bulacan and Bataan was also considered as additional factual basis
for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in
Benguet resulting in the death of three (3) soldiers. And also the directive of the
Communist Party of the Philippines ordering its front organizations to join 5,000
Metro Manila radicals and 25,000 more from the provinces in mass protests. [10]

By midnight of February 23, 2006, the President convened her security

advisers and several cabinet members to assess the gravity of the fermenting peace
and order situation. She directed both the AFP and the PNP to account for all their
men and ensure that the chain of command remains solid and undivided. To
protect the young students from any possible trouble that might break loose on the
streets, the President suspended classes in all levels in the entire National Capital
Region.

For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all

programs and activities related to the 20 th anniversary celebration of Edsa People
Power I; and revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that political rallies, which to
the Presidents mind were organized for purposes of destabilization, are
cancelled. Presidential Chief of Staff Michael Defensor announced that
warrantless arrests and take-over of facilities, including media, can already be
implemented.[11]

Undeterred by the announcements that rallies and public assemblies would

not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched
from various parts of Metro Manila with the intention of converging at the EDSA
shrine. Those who were already near the EDSA site were violently dispersed by
huge clusters of anti-riot police. The well-trained policemen used truncheons, big
fiber glass shields, water cannons, and tear gas to stop and break up the marching
groups, and scatter the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot policemen broke
up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in
Makati City.[12]
 According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion, Ronald
Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP
1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team
confiscated news stories by reporters, documents, pictures, and mock-ups of the
Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside
the editorial and business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building.[13]

A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and its
sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael

Defensor, is meant to show a strong presence, to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government. The PNP warned that it would take over any media organization
that would not follow standards set by the government during the state of national
emergency. Director General Lomibao stated that if they do not follow the
standards and the standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 we will recommend a takeover. National Telecommunications
Commissioner Ronald Solis urged television and radio networks
to cooperate with the government for the duration of the state of national
emergency. He asked for balanced reporting from broadcasters when covering
the events surrounding the coup attempt foiled by the government. He warned that
his agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage when the national security is threatened.[14]
 Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU),
while leaving his farmhouse in Bulacan. The police showed a warrant for his
arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed
from a case of inciting to rebellion filed during the Marcos regime, had long been
quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they
were told they could not be admitted because of PP 1017 and G.O. No. 5. Two
members were arrested and detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police
went after him during a public forum at the Sulo Hotel in Quezon City. But his two
drivers, identified as Roel and Art, were taken into custody.

Retired Major General Ramon Montao, former head of the Philippine

Constabulary, was arrested while with his wife and golfmates at the Orchard Golf
and Country Club in Dasmarias, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo,

Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador
was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to
the custody of the House of Representatives where the Batasan 5 decided to stay
indefinitely.

Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these
petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state
of national emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of

PP 1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on

the grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a
subterfuge to avoid the constitutional requirements for the imposition of martial
law; and (3) it violates the constitutional guarantees of freedom of the press, of
speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing

Co., Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear
case of censorship or prior restraint. They also claimed that the term
emergency refers only to tsunami, typhoon, hurricane and similar occurrences,
hence, there is absolutely no emergency that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.

Escudero, and twenty one (21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
usurpation of legislative powers; violation of freedom of expression and a
declaration of martial law. They alleged that President Arroyo gravely abused
her discretion in calling out the armed forces without clear and verifiable factual
basis of the possibility of lawless violence and a showing that there is necessity to do
so.

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members

averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate
unto President Arroyo the power to enact laws and decrees; (2) their issuance was
without factual basis; and (3) they violate freedom of expression and the right of the
people to peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section
4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of
Article VI, and (d) Section 17[20] of Article XII of the Constitution.
 In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an arbitrary and unlawful exercise by the President of her Martial Law
powers. And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that it amounts to an exercise by the President of emergency
powers without congressional approval. In addition, petitioners asserted that PP
1017 goes beyond the nature and function of a proclamation as defined under the
Revised Administrative Code.

And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that
PP 1017 and G.O. No. 5 are unconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of the press and the right to
access to information on matters of public concern, all guaranteed under Article III,
Section 4 of the 1987 Constitution. In this regard, she stated that these issuances
prevented her from fully prosecuting her election protest pending before the
Presidential Electoral Tribunal.

In respondents Consolidated Comment, the Solicitor General countered

that: first, the petitions should be dismissed for
being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.)
have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis;
and fifth, PP 1017 does not violate the peoples right to free expression and redress
of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties
on the above interlocking issues which may be summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot

and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.

171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.),
and 171424 (Legarda) have legal standing.
 B. SUBSTANTIVE:

1) Whether the Supreme Court can review the factual bases of

PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.[21] This concept rests
on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the

people, the ultimate source of all political authority. It confers limited
powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there
must be some authority competent to hold it in control, to
thwart its unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in the
Constitution. This power the courts exercise. This is the
beginning and the end of the theory of judicial review.[22]

But the power of judicial review does not repose upon the courts a self-
starting capacity.[23] Courts may exercise such power only when the following
requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself.[24]

Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite

legal claims susceptible of judicial resolution. It is definite and concrete, touching
the legal relations of parties having adverse legal interest; a real and substantial
controversy admitting of specific relief.[25] The Solicitor General refutes the
existence of such actual case or controversy, contending that the present petitions
were rendered moot and academic by President Arroyos issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable

controversy by virtue of supervening events, [26] so that a declaration thereon would
be of no practical use or value. [27] Generally, courts decline jurisdiction over such
case[28] or dismiss it on ground of mootness.[29]

The Court holds that President Arroyos issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP 1017
was operative, the police officers, according to petitioners, committed illegal acts in
implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do
they justify these alleged illegal acts? These are the vital issues that must be
resolved in the present petitions. It must be stressed that an unconstitutional
act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative.[30]

The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the Constitution;
[31]
second, the exceptional character of the situation and the paramount public
interest is involved;[32] third,when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; [33] and fourth, the
case is capable of repetition yet evading review.[34]

All the foregoing exceptions are present here and justify this Courts
assumption of jurisdiction over the instant petitions. Petitioners alleged that the
issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question
that the issues being raised affect the publics interest, involving as they do the
peoples basic rights to freedom of expression, of assembly and of the
press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of educating
the bench and the bar, and in the present petitions, the military and the police,
on the extent of the protection given by constitutional guarantees. [35] And lastly,
respondents contested actions are capable of repetition. Certainly, the petitions
are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive
Secretary.[36] However, they failed to take into account the Chief Justices very
statement that an otherwise moot case may still be decided provided the party
raising it in a proper case has been and/or continues to be prejudiced or damaged as
a direct result of its issuance. The present case falls right within this exception to
the mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court

deems it imperative to have a more than passing discussion on legal standing
or locus standi.

Locus standi is defined as a right of appearance in a court of justice on a

given question.[37] In private suits, standing is governed by the real-parties-in
interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure,
as amended. It provides that every action must be prosecuted or defended in
the name of the real party in interest. Accordingly, the real-party-in
interest is the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the
suit.[38] Succinctly put, the plaintiffs standing is based on his own right to the
relief sought.

The difficulty of determining locus standi arises in public suits. Here,

the plaintiff who asserts a public right in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person who is
affected no differently from any other person. He could be suing as a stranger, or
in the category of a citizen, or taxpayer. In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make
out a sufficient interest in the vindication of the public order and the securing of
relief as a citizen or taxpayer.

Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,[39] where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but
the mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:[40] In matter of mere public right,
howeverthe people are the real partiesIt is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied. With
respect to taxpayers suits, Terr v. Jordan[41] held that the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use
of public funds to his injury cannot be denied.

However, to prevent just about any person from seeking judicial interference in
any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent direct injury test in Ex Parte
Levitt,[42] later reaffirmed inTileston v. Ullman.[43] The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.

This Court adopted the direct injury test in our jurisdiction. In People
v. Vera,[44] it held that the person who impugns the validity of a statute must have
a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result. The Vera doctrine was
upheld in a litany of cases, such as, Custodio v. President of the Senate,[45] Manila
Race Horse Trainers Association v. De la Fuente,[46] Pascual v. Secretary of Public
Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]

However, being a mere procedural technicality, the requirement of locus

standi may be waived by the Court in the exercise of its discretion. This was done in
the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[49] where the
transcendental importance of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,[50] this Court resolved to pass upon the issues raised due to the far-
reaching implications of the petition notwithstanding its categorical statement
that petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings. [51]

Thus, the Court has adopted a rule that even where the petitioners have failed
to show direct injury, they have been allowed to sue under the principle of
transcendental importance. Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,[52] where the Court ruled

that the enforcement of the constitutional right to information
and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner
with locus standi;
 (2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the
Court held that given the transcendental importance of the
issues involved, the Court may relax the standing requirements
and allow the suit to prosper despite the lack of direct injury to
the parties seeking judicial review of the Visiting Forces
Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that Balikatan 02-01 involves the exercise of Congress
taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,[55] that in cases of
transcendental importance, the cases must be settled promptly
and definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided
by this Court. Taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of

public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the

validity of the election law in question;

(4) for concerned citizens, there must be a showing that the

issues raised are of transcendental importance which must be settled
early; and

(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
 Significantly, recent decisions show a certain toughening in the Courts
attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status

of Kilosbayan as a peoples organization does not give it the requisite personality to
question the validity of the on-line lottery contract, more so where it does not raise
any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any
allegation that public funds are being misused. Nor can it sue as a concerned citizen
as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.

Comelec,[57] the Court reiterated the direct injury test with respect to concerned
citizens cases involving constitutional issues. It held that there must be a
showing that the citizen personally suffered some actual or threatened injury
arising from the alleged illegal official act.

In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,[59] the Court ruled that only the

petitioners who are members of Congress have standing to sue, as they claim that
the Presidents declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers. As
to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court
declared them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged direct
injury resulting from illegal arrest and unlawful search committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question
their legal standing.
 In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or not the
concurrence of Congress is necessary whenever the alarming powers incident to
Martial Law are used. Moreover, it is in the interest of justice that those affected
by PP 1017 can be represented by their Congressmen in bringing to the attention of
the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform,[62] Basco v. Philippine Amusement and Gaming
Corporation,[63] and Taada v. Tuvera,[64] that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.

In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated
its right to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of
their members.[65] We take judicial notice of the announcement by the Office of
the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to
allege any direct or potential injury which the IBP as an institution or its members
may suffer as a consequence of the issuance of PP No. 1017 and G.O. No.
5. In Integrated Bar of the Philippines v. Zamora, [66] the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the whole
citizenry. However, in view of the transcendental importance of the issue, this
Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file

the instant petition as there are no allegations of illegal disbursement of public
funds. The fact that she is a former Senator is of no consequence. She can no
longer sue as a legislator on the allegation that her prerogatives as a lawmaker have
been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her
submission that she has pending electoral protest before the Presidential Electoral
Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017
will affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the standing
rules.

It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is the
underlying legal tenet of the liberality doctrine on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which
is of paramount importance to the Filipino people. To paraphrase Justice Laurel,
the whole of Philippine society now waits with bated breath the ruling of this Court
on this very critical matter. The petitions thus call for the application of the
transcendental importance doctrine, a relaxation of the standing
requirements for the petitioners in the PP 1017 cases.

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as

respondent. Settled is the doctrine that the President, during his tenure of office or
actual incumbency,[67] may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed
from any form of harassment, hindrance or distraction to enable him to fully attend
to the performance of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and anything which
impairs his usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President is not accountable to
anyone. Like any other official, he remains accountable to the people [68] but he may
be removed from office only in the mode provided by law and that is by
impeachment.[69]

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
necessary for President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the
Presidents exercise of his Commander-in-Chief power has reached its distilled
point - from the indulgent days of Barcelon v.
[70] [71]
Baker and Montenegro v. Castaneda to the volatile era
of Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v.
Enrile.[74] The tug-of-war always cuts across the line defining political questions,
particularly those questions in regard to which full discretionary authority has
been delegated to the legislative or executive branch of the
[75]
government. Barcelon and Montenegro were in unison in declaring that
the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were
unanimous in the conviction that the Court has the authority to inquire into the
existence of factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers, it shifted the focus
to the system of checks and balances, under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him
by the Basic Law, and the authority to determine whether or not he
has so acted is vested in the Judicial Department,which in this
respect, is, in turn, constitutionally supreme.[76] In 1973,
the unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the
Court was almost evenly divided on the issue of whether the validity of
the imposition of Martial Law is a political or justiciable question.
[78]
Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared
that there is a need to re-examine the latter case, ratiocinating that in times of
war or national emergency, the President must be given absolute control
for the very life of the nation and the government is in great peril. The
President, it intoned, is answerable only to his conscience, the People, and
God.[79]

The Integrated Bar of the Philippines v. Zamora [80] -- a recent case most
pertinent to these cases at bar -- echoed a principle similar to Lansang. While the
Court considered the Presidents calling-out power as a discretionary power
solely vested in his wisdom, it stressed that this does not prevent an
examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion. This ruling is mainly a result of the Courts
reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority
of the courts to determine in an appropriate action the validity of the acts of the
political departments. Under the new definition of judicial power, the courts are
authorized not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government. The latter part of the authority represents a broadening of judicial
power to enable the courts of justice to review what was before a forbidden
territory, to wit, the discretion of the political departments of the government.
[81]
It speaks of judicial prerogative not only in terms of power but also of duty.[82]

As to how the Court may inquire into the Presidents exercise of

power, Lansang adopted the test that judicial inquiry can go no further than to
satisfy the Court not that the Presidents decision is correct, but that the
President did not act arbitrarily. Thus, the standard laid down is not correctness,
but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled
that it is incumbent upon the petitioner to show that the Presidents
decision is totally bereft of factual basis and that if he fails, by way of proof,
to support his assertion, then this Court cannot undertake an independent
investigation beyond the pleadings.

Petitioners failed to show that President Arroyos exercise of the calling-out

power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor Generals Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with supporting reports
forming part of the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the military, particularly
in the Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security Group
of the Philippine Army showing the growing alliance between the NPA and the
military. Petitioners presented nothing to refute such events. Thus, absent any
contrary allegations, the Court is convinced that the President was justified in
issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what she
believed was lawless violence, invasion or rebellion. However, the exercise of such
power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists

on the Power of the President

in Times of Emergency
 This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to the
nation, positive law enacted by the legislature might be inadequate or even a fatal obstacle
to the promptness of action necessary to avert catastrophe. In these situations, the Crown
retained a prerogative power to act according to discretion for the public good,
without the proscription of the law and sometimes even against it.[84] But Locke
recognized that this moral restraint might not suffice to avoid abuse of prerogative
powers. Who shall judge the need for resorting to the prerogative and how may
its abuse be avoided? Here, Locke readily admitted defeat, suggesting that the people
have no other remedy in this, as in all other cases where they have no judge on
earth, but to appeal to Heaven.[85]

Jean-Jacques Rousseau also assumed the need for temporary suspension of

democratic processes of government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting

themselves to circumstances, may, in certain cases, render them disastrous
and make them bring about, at a time of crisis, the ruin of the State
 It is wrong therefore to wish to make political institutions as strong as
to render it impossible to suspend their operation. Even Sparta allowed its
law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme lawyer,
who shall silence all the laws and suspend for a moment the sovereign
authority. In such a case, there is no doubt about the general will, and it clear
that the peoples first intention is that the State shall not perish.[86]

Rosseau did not fear the abuse of the emergency dictatorship or supreme
magistracy as he termed it. For him, it would more likely be cheapened by
indiscreet use. He was unwilling to rely upon an appeal to
heaven. Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative government:

I am far from condemning, in cases of extreme necessity, the assumption
of absolute power in the form of a temporary dictatorship.[88]

Nicollo Machiavellis view of emergency powers, as one element in the whole

scheme of limited government, furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this chasm in democratic
political theory, thus:
 Now, in a well-ordered society, it should never be necessary to
resort to extra constitutional measures; for although they may for a
time be beneficial, yet the precedent is pernicious, for if the practice is
once established for good objects, they will in a little while be
disregarded under that pretext but for evil purposes. Thus, no republic
will ever be perfect if she has not by law provided for everything,
having a remedy for every emergency and fixed rules for applying it.[89]

Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate

into the constitution a regularized system of standby emergency powers to be
invoked with suitable checks and controls in time of national danger. He attempted
forthrightly to meet the problem of combining a capacious reserve of power and
speed and vigor in its application in time of emergency, with effective constitutional
restraints.[90]

Contemporary political theorists, addressing themselves to the problem of

response to emergency by constitutional democracies, have employed the doctrine of
constitutional dictatorship.[91] Frederick M. Watkins saw no reason why
absolutism should not be used as a means for the defense of liberal
institutions, provided it serves to protect established institutions from
the danger of permanent injury in a period of temporary emergency and is
followed by a prompt return to the previous forms of political life.[92] He
recognized the two (2) key elements of the problem of emergency governance, as well
as all constitutional governance: increasing administrative powers of the
executive, while at the same time imposing limitation upon that
power.[93] Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: The
period of dictatorship must be relatively shortDictatorship should always
be strictly legitimate in characterFinal authority to determine the need
for dictatorship in any given case must never rest with the dictator
himself[94] and the objective of such an emergency dictatorship should be
strict political conservatism.
 Carl J. Friedrich cast his analysis in terms similar to those of Watkins.
[95]
It is a problem of concentrating power in a government where power has
consciously been divided to cope with situations of unprecedented magnitude
and gravity. There must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how long, and to what
end.[96] Friedrich, too, offered criteria for judging the adequacy of any of scheme of
emergency powers, to wit: The emergency executive must be appointed by
constitutional means i.e., he must be legitimate; he should not enjoy
power to determine the existence of an emergency; emergency powers
should be exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional order.[97]

Clinton L. Rossiter, after surveying the history of the employment of

emergency powers in Great Britain, France, Weimar, Germany and the United
States, reverted to a description of a scheme of constitutional dictatorship as
solution to the vexing problems presented by emergency. [98] Like Watkins and
Friedrich, he stated a priori the conditions of success of the constitutional
dictatorship, thus:

1) No general regime or particular institution of

constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the State
and its constitutional order

2) the decision to institute a constitutional dictatorship

should never be in the hands of the man or men who will
constitute the dictator

3) No government should initiate a constitutional

dictatorship without making specific provisions for its
termination
 4) all uses of emergency powers and all readjustments
in the organization of the government should be effected in
pursuit of constitutional or legal requirements

5) no dictatorial institution should be adopted, no

right invaded, no regular procedure altered any more than is
absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a

constitutional dictatorship should never be permanent in
character or effect

7) The dictatorship should be carried on by persons

representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for

every action taken under a constitutional dictatorship. . .

9) The decision to terminate a constitutional

dictatorship, like the decision to institute one should never be in
the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond

the termination of the crisis for which it was instituted

11) the termination of the crisis must be followed by a

complete return as possible to the political and governmental
 conditions existing prior to the initiation of the constitutional
dictatorship[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of

emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and he
places great faith in the effectiveness of congressional investigating committees.[100]

Scott and Cotter, in analyzing the above contemporary theories in light of

recent experience, were one in saying that, the suggestion that democracies
surrender the control of government to an authoritarian ruler in time of
grave danger to the nation is not based upon sound constitutional theory.
To appraise emergency power in terms of constitutional dictatorship serves merely
to distort the problem and hinder realistic analysis. It matters not whether the
term dictator is used in its normal sense (as applied to authoritarian rulers) or
is employed to embrace all chief executives administering emergency powers.
However used, constitutional dictatorship cannot be divorced from the
implication of suspension of the processes of constitutionalism. Thus, they favored
instead the concept of constitutionalism articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the

analysis of problems of emergency powers, and which is consistent with
the findings of this study, is that formulated by Charles H. McIlwain.
While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis
is placed upon procedural limitations, and political
responsibility. McIlwain clearly recognized the need to repose
adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for
keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated
emphasis upon separation of powers and substantive limitations on
 governmental power. He found that the really effective checks on
despotism have consisted not in the weakening of government but, but
rather in the limiting of it; between which there is a great and very
significant difference. In associating constitutionalism with
limited as distinguished from weak government,
McIlwain meant government limited to the orderly procedure
of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for
which all lovers of liberty must yet fight are the legal limits to
arbitrary power and a complete political responsibility of
government to the governed.[101]

In the final analysis, the various approaches to emergency of the above

political theorists - from Locks theory of prerogative, to Watkins doctrine of
constitutional dictatorship and, eventually, to McIlwains principle of
constitutionalism --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to
the Chief Executive, while insuring that such powers will be exercised
with a sense of political responsibility and under effective limitations and
checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of
a repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice
Jacksons balanced power structure.[102] Executive, legislative, and judicial
powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to
serve as limitation or check upon the
other. This system does not weaken the President, it just limits his power,
using the language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount of faith in the
basic integrity and wisdom of the Chief Executive but, at the same time, it obliges
him to operate within carefully prescribed procedural limitations.

a. Facial Challenge

Petitioners contend that PP 1017 is void on its face because of its

overbreadth. They claim that its enforcement encroached on both unprotected
and protected rights under Section 4, Article III of the Constitution and sent a
chilling effect to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed

for testing on their faces statutes in free speech cases, also known under the
American Law as First Amendment cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to speech or

even speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,[104] the US
Supreme Court held that we have not recognized an overbreadth
doctrine outside the limited context of the First Amendment (freedom of
speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a
law that reflects legitimate state interest in maintaining comprehensive control
over harmful, constitutionally unprotected conduct. Undoubtedly, lawless violence,
insurrection and rebellion are considered harmful and constitutionally
unprotected conduct. In Broadrick v. Oklahoma,[105] it was held:

It remains a matter of no little difficulty to determine when a

law may properly be held void on its face and when such summary
action is inappropriate. But the plain import of our cases is, at
the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its
function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to
sanction moves from pure speech toward conduct and that
conduct even if expressive falls within the scope of
otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes

which, by their terms, seek to regulate only spoken words and again, that
overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to
protected conduct.[106] Here, the incontrovertible fact remains that PP 1017
pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.

Second, facial invalidation of laws is considered as manifestly strong

medicine, to be used sparingly and only as a last resort, and is
generally disfavored;[107] The reason for this is obvious. Embedded in the
traditional rules governing constitutional adjudication is the principle that a person
to whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other
situations not before the Court.[108] A writer and scholar in Constitutional Law
explains further:

The most distinctive feature of the overbreadth

technique is that it marks an exception to some of the usual
rules of constitutional litigation. Ordinarily, a particular
litigant claims that a statute is unconstitutional as applied to
him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court
invalidates the entire statute on its face, not merely as applied
for so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with
the chilling; deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that
an overbroad laws very existence may cause others not before the
court to refrain from constitutionally protected speech or
expression. An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require
the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of
its actual operation to petitioners, but on the assumption or prediction that its very
existence may cause others not before the Court to refrain from constitutionally
protected speech or expression. In Younger v. Harris,[109] it was held that:
 [T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before the
statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way
they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can
be no instance when the assailed law may be valid. Here, petitioners did not
even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of

vagueness. This, too, is unwarranted.

Related to the overbreadth doctrine is the void for vagueness doctrine

which holds that a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its application.[110] It
is subject to the same principles governing overbreadth doctrine. For one, it is also
an analytical tool for testing on their faces statutes in free speech cases. And
like overbreadth, it is said that a litigant may challenge a statute on its face only if
it is vague in all its possible applications. Again, petitioners did not even
attempt to show that PP 1017 is vague in all its application. They also failed
to establish that men of common intelligence cannot understand the meaning and
application of PP 1017.
 b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important

provisions, thus:

First provision:

by virtue of the power vested upon me by Section 18, Artilce

VII do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any act of insurrection or
rebellion

Second provision:

and to enforce obedience to all the laws and to all decrees,

orders and regulations promulgated by me personally or upon my
direction;
 Third provision:

as provided in Section 17, Article XII of the Constitution do

hereby declare a State of National Emergency.

First Provision: Calling-out Power

The first provision pertains to the Presidents calling-out power. In

Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga,
held that Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all

armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.

The Congress, if not in session, shall within twenty-four hours

following such proclamation or suspension, convene in accordance with
its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding

filed by any citizen, the sufficiency of the factual bases of the
proclamation of martial law or the suspension of the privilege of the
writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to

persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
 During the suspension of the privilege of the writ, any person
thus arrested or detained shall be judicially charged within three days,
otherwise he shall be released.

grants the President, as Commander-in-Chief, a sequence of graduated

powers. From the most to the least benign, these are: the calling-out power, the
power to suspend the privilege of the writ of habeas corpus, and the power to declare
Martial Law. Citing Integrated Bar of the Philippines v. Zamora,[112] the Court
ruled that the only criterion for the exercise of the calling-out power is that
whenever it becomes necessary, the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion. Are these
conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her Offices vast intelligence network, she is in the best position to
determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to
aid him in suppressing lawless violence, invasion and rebellion. This involves
ordinary police action. But every act that goes beyond the Presidents calling-out
power is considered illegal or ultra vires. For this reason, a President must be
careful in the exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the

Presidents authority to declare a state of rebellion (in Sanlakas) and the
authority to proclaim a state of national emergency. While President Arroyos
authority to declare a state of rebellion emanates from her powers as Chief
Executive, the statutory authority cited inSanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:
 SEC. 4. Proclamations. Acts of the President fixing a
date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific
law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.

President Arroyos declaration of a state of rebellion was merely an act

declaring a status or condition of public moment or interest, a declaration allowed
under Section 4 cited above. Such declaration, in the words of Sanlakas, is
harmless, without legal significance, and deemed not written. In these cases, PP
1017 is more than that. In declaring a state of national emergency, President
Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or
rebellion. She also relied on Section 17, Article XII, a provision on the States
extraordinary power to take over privately-owned public utility and business
affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome
power. Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a

declaration of Martial Law. It is no so. What defines the character of PP 1017 are
its wordings. It is plain therein that what the President invoked was her calling-out
power.

The declaration of Martial Law is a warn[ing] to citizens that the military

power has been called upon by the executive to assist in the maintenance of law and
order, and that, while the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way render more difficult the
restoration of order and the enforcement of law.[113]
 In his Statement before the Senate Committee on Justice on March 13,
2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law, said
that of the three powers of the President as Commander-in-Chief, the power to
declare Martial Law poses the most severe threat to civil liberties. It is a strong
medicine which should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of the President for
the purpose of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial

Law. It is no more than a call by the President to the armed forces to prevent or
suppress lawless violence. As such, it cannot be used to justify acts that only under
a valid declaration of Martial Law can be done. Its use for any other purpose is a
perversion of its nature and scope, and any act done contrary to its command
is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of news media
and agencies and press censorship; and (d) issuance of Presidential Decrees, are
powers which can be exercised by the President as Commander-in-Chief only where
there is a valid declaration of Martial Law or suspension of the writ of habeas
corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of

Martial Law. It is merely an exercise of President Arroyos calling-out
power for the armed forces to assist her in preventing or suppressing lawless
violence.

Second Provision: Take Care Power

The second provision pertains to the power of the President to ensure that the
laws be faithfully executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.

As the Executive in whom the executive power is vested, [115] the primary
function of the President is to enforce the laws as well as to formulate policies to be
embodied in existing laws. He sees to it that all laws are enforced by the officials
and employees of his department. Before assuming office, he is required to take an
oath or affirmation to the effect that as President of the Philippines, he will, among
others, execute its laws.[116] In the exercise of such function, the President, if
needed, may employ the powers attached to his office as the Commander-in-Chief of
all the armed forces of the country, [117] including the Philippine National
Police[118] under the Department of Interior and Local Government. [119]
 Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that
PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to
enact laws and decrees in violation of Section 1, Article VI of the Constitution,
which vests the power to enact laws in Congress. They assail the clause to
enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction.

Petitioners contention is understandable. A reading of PP 1017 operative

clause shows that it was lifted[120] from Former President Marcos Proclamation No.
1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President

of the Philippines by virtue of the powers vested upon me by Article
VII, Section 10, Paragraph (2) of the Constitution, do hereby place the
entire Philippines as defined in Article 1, Section 1 of the Constitution
under martial law and, in my capacity as their Commander-in-
Chief, do hereby command the Armed Forces of the Philippines,
to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the
laws and decrees, orders and regulations promulgated by me
personally or upon my direction.
 We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction. Upon the other hand, the enabling clause of PP 1017 issued by
President Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction.

Is it within the domain of President Arroyo to promulgate decrees?

PP 1017 states in
part: to enforce obedience to all the laws and decrees x x x promulgated
by me personally or upon my direction.

The President is granted an Ordinance Power under Chapter 2, Book III of

Executive Order No. 292 (Administrative Code of 1987). She may issue any of the
following:

Sec. 2. Executive Orders. Acts of the President providing for

rules of a general or permanent character in implementation or
execution of constitutional or statutory powers shall be promulgated in
executive orders.
Sec. 3. Administrative Orders. Acts of the President which
relate to particular aspect of governmental operations in pursuance of
his duties as administrative head shall be promulgated in
administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made
 to depend, shall be promulgated in proclamations which shall have the
force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on
matters of administrative detail or of subordinate or temporary
interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on
matters relating to internal administration, which the President
desires to bring to the attention of all or some of the departments,
agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces
of the Philippines shall be issued as general or special orders.

President Arroyos ordinance power is limited to the foregoing issuances.

She cannot issue decrees similar to those issued by Former President Marcos
under PP 1081. Presidential Decrees are laws which are of the same category and
binding force as statutes because they were issued by the President in the exercise
of his legislative power during the period of Martial Law under the 1973
Constitution.[121]

This Court rules that the assailed PP 1017 is unconstitutional insofar

as it grants President Arroyo the authority to promulgate
decrees. Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that [t]he legislative
power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives. To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify President
Arroyos exercise of legislative power by issuing decrees.
 Can President Arroyo enforce obedience to all decrees and laws through the
military?

As this Court stated earlier, President Arroyo has no authority to enact

decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to laws, she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and property
relations, laws on obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless
violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to

all decrees, orders, and regulations promulgated by me
personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do
hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience to all the laws and to all decrees x x x but also to act pursuant to the
provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest

so requires, the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of
any privately-owned public utility or business affected with public
interest.

What could be the reason of President Arroyo in invoking the above provision
when she issued PP 1017?

The answer is simple. During the existence of the state of national

emergency, PP 1017 purports to grant the President, without any authority or
delegation from Congress, to take over or direct the operation of any privately-
owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of

the martial law thinking of the 1971 Constitutional Convention. [122] In effect at
the time of its approval was President Marcos Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over
the management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks
and Sewerage Authority, the Philippine National Railways, the Philippine Air
Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution
by the Government of its effort to contain, solve and end the present national
emergency.
 Petitioners, particularly the members of the House of Representatives, claim
that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislatures emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the Presidents authority to declare a

state of national emergency and to exercise emergency powers. To the first,
as elucidated by the Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be raised. But to the second,
manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both

Houses in joint session assembled, voting separately, shall have
the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the

Congress may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers
not only to war but also to other national emergency. If the intention of the
Framers of our Constitution was to withhold from the President the authority to
declare a state of national emergency pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence of
a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a
state of national emergency. The logical conclusion then is that President Arroyo
could validly declare the existence of a state of national emergency even in the
absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions of a
constitution which relate to the same subject matter will be construed together and
considered in the light of each other.[123] Considering that Section 17 of Article XII
and Section 23 of Article VI, previously quoted, relate to national emergencies, they
must be read together to determine the limitation of the exercise of emergency
powers.

Generally, Congress is the repository of emergency powers. This is

evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may not be
possible or practicable for Congress to meet and exercise its powers, the Framers of
our Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

 (3) The delegation must be subject to such restrictions as
the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a

national policy declared by Congress.[124]

Section 17, Article XII must be understood as an aspect of the emergency

powers clause. The taking over of private business affected with public interest is
just another facet of the emergency powers generally reposed upon Congress. Thus,
when Section 17 states that the the State may, during the emergency and
under reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or business affected
with public interest, it refers to Congress, not the President. Now, whether or
not the President may exercise such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the reasonable terms
thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held:

It is clear that if the President had authority to issue the order

he did, it must be found in some provision of the Constitution. And it
is not claimed that express constitutional language grants this power
to the President. The contention is that presidential power should be
implied from the aggregate of his powers under the
Constitution. Particular reliance is placed on provisions in Article II
which say that The executive Power shall be vested in a President . . .
.; that he shall take Care that the Laws be faithfully executed; and
that he shall be Commander-in-Chief of the Army and Navy of the
United States.

The order cannot properly be sustained as an exercise of the

Presidents military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of cases
 upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us
here. Even though theater of war be an expanding concept,
we cannot with faithfulness to our constitutional system hold
that the Commander-in-Chief of the Armed Forces has the
ultimate power as such to take possession of private property
in order to keep labor disputes from stopping production. This
is a job for the nations lawmakers, not for its military
authorities.

Nor can the seizure order be sustained because of the

several constitutional provisions that grant executive power to
the President. In the framework of our Constitution, the
Presidents power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution
limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws
he thinks bad. And the Constitution is neither silent nor
equivocal about who shall make laws which the President is to
execute. The first section of the first article says that All
legislative Powers herein granted shall be vested in a Congress
of the United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency under

Section 17, Article XII refers to tsunami,
typhoon, hurricane and similar occurrences. This is a limited view
of emergency.
 Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity,
variety, and perception.[127] Emergencies, as perceived by legislature or executive in
the United Sates since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a) economic,[128] b) natural disaster,
[129]
and c) national security.[130]

Emergency, as contemplated in our Constitution, is of the same

breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon,
flood, or other similar catastrophe of nationwide proportions or effect. [131] This is
evident in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committees definition of

national emergency which appears in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take
over or direct the operation of any privately owned public utility or
business affected with public interest.

MR. VILLEGAS. What I mean is threat from external

aggression, for example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los

Reyes. What about strikes and riots?
 MR. VILLEGAS. Strikes, no; those would not be covered by the
term national emergency.

MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.[132]

x x x x x x

MR. TINGSON. May I ask the committee if national emergency

refers to military national emergency or could this be economic
emergency?

MR. VILLEGAS. Yes, it could refer to both military or economic

dislocations.

MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be
able to convene and, therefore, unable to delegate to the President the power to take
over privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative power,

through which extraordinary measures are exercised, remains in Congress even in
times of crisis.

x x x

After all the criticisms that have been made against the
efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in preference
to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have
given notice that they share the faith of other democracy-loving
 peoples in this system, with all its faults, as the ideal. The point
is, under this framework of government, legislation is preserved
for Congress all the time, not excepting periods of crisis no
matter how serious. Never in the history of the United States,
the basic features of whose Constitution have been copied in
ours, have specific functions of the legislative branch of enacting
laws been surrendered to another department unless we
regard as legislating the carrying out of a legislative policy
according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in a
life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of
extreme perils more than in normal circumstances the various
branches, executive, legislative, and judicial, given the ability
to act, are called upon to perform the duties and discharge the
responsibilities committed to them respectively.

Following our interpretation of Section 17, Article XII, invoked by President

Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest
without authority from Congress.

Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take over
privately-owned public utility or business affected with public interest. The
President cannot decide whether exceptional circumstances exist warranting the
take over of privately-owned public utility or business affected with public
interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the
types of businesses affected with public interest that should be taken over. In
short, the President has no absolute authority to exercise all the powers of the State
under Section 17, Article VII in the absence of an emergency powers act passed by
Congress.

c. AS APPLIED CHALLENGE

One of the misfortunes of an emergency, particularly, that which pertains to

security, is that military necessity and the guaranteed rights of the individual are
often not compatible. Our history reveals that in the crucible of conflict, many
rights are curtailed and trampled upon. Here, the right against unreasonable
search and seizure; the right against warrantless arrest; and the freedom
of speech, of expression, of the press, and of assembly under the Bill of Rights
suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate direct injury.

In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to celebrate
the 20thAnniversary of People Power I. The arresting officers cited PP 1017 as
basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,

Inc. claimed that on February 25, 2006, the CIDG operatives raided and
ransacked without warrant their office. Three policemen were assigned to guard
their office as a possible source of destabilization. Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged
that their members were turned away and dispersed when they went to EDSA
and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
 A perusal of the direct injuries allegedly suffered by the said petitioners
shows that they resulted from the implementation, pursuant to G.O. No. 5, of PP
1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the

basis of these illegal acts? In general, does the illegal implementation of a law render
it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused [135] and may afford an
opportunity for abuse in the manner of application.[136] The validity of a
statute or ordinance is to be determined from its general purpose and its efficiency
to accomplish the end desired, not from its effects in a particular case.[137] PP
1017 is merely an invocation of the Presidents calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion
or rebellion. It had accomplished the end desired which prompted President Arroyo
to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate the citizens constitutional
rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the

ground that its implementor committed illegal acts? The answer is no. The
criterion by which the validity of the statute or ordinance is to be measured is the
essential basis for the exercise of power, and not a mere incidental result
arising from its exertion.[138] This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the
blunders committed by policemen in the cases passed upon by the Court, majority of
the provisions of the Revised Penal Code would have been declared unconstitutional
a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines. They are internal
rules issued by the executive officer to his subordinates precisely for
the proper and efficientadministration of law. Such rules and regulations
create no relation except between the official who issues them and the official who
receives them.[139] They are based on and are the product of, a relationship in which
power is their source, and obedience, their object. [140] For these reasons, one
requirement for these rules to be valid is that they must be reasonable, not
arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.

Unlike the term lawless violence which is unarguably extant in our

statutes and the Constitution, and which is invariably associated with invasion,
insurrection or rebellion, the phrase acts of terrorism is still an amorphous and
vague concept. Congress has yet to enact a law defining and punishing acts of
terrorism.

In fact, this definitional predicament or the absence of an agreed

definition of terrorism confronts not only our country, but the international
community as well. The following observations are quite apropos:
 In the actual unipolar context of international relations, the
fight against terrorism has become one of the basic slogans when it
comes to the justification of the use of force against certain states and
against groups operating internationally. Lists of states sponsoring
terrorism and of terrorist organizations are set up and constantly
being updated according to criteria that are not always known to the
public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions or

threats of the use of force as the most recent by the United States
against Iraq consists in the absence of an agreed definition of
terrorism.

Remarkable confusion persists in regard to the legal

categorization of acts of violence either by states, by armed groups
such as liberation movements, or by individuals.

The dilemma can by summarized in the saying One countrys

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

What, then, is the defining criterion for terrorist acts

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

The dilemma facing the international community can best be

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

How, then, can those contradicting definitions and conflicting

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

The United Nations Organization has been unable to reach a

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

This definitional predicament of an organization consisting of

sovereign states and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! has become even more
serious in the present global power constellation: one superpower
exercises the decisive role in the Security Council, former great powers
of the Cold War era as well as medium powers are increasingly being
marginalized; and the problem has become even more acute since the
terrorist attacks of 11 September 2001 I the United States. [141]

The absence of a law defining acts of terrorism may result in abuse and
oppression on the part of the police or military. An illustration is when a group of
persons are merely engaged in a drinking spree. Yet the military or the police may
consider the act as an act of terrorism and immediately arrest them pursuant to
G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining the
same as such and imposing the corresponding penalty thereon.

So far, the word terrorism appears only once in our criminal laws, i.e., in
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during the
Martial Law regime. This decree is entitled Codifying The Various Laws on Anti-
Subversion and Increasing The Penalties for Membership in Subversive
Organizations. The word terrorism is mentioned in the following
provision: That one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force, violence, terrorism,
x x x shall be punished by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5,
1985. These two (2) laws, however, do not define acts of terrorism. Since there
is no law defining acts of terrorism, it is President Arroyo alone, under G.O. No.
5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there can
be indiscriminate arrest without warrants, breaking into offices and residences,
taking over the media enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected in the name
of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus,
this Court declares that the acts of terrorism portion of G.O. No. 5 is
unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police

to commit acts beyond what are necessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.
 We first examine G.R. No. 171396 (David et al.)

The Constitution provides that the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and seizure of
whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized. [142] The plain import
of the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search warrant or
warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue search warrants or warrants of arrest.
[143]

In the Brief Account[144] submitted by petitioner David, certain facts are

established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a criminal
suspect; fourth, he was treated brusquely by policemen who held his head and
tried to push him inside an unmarked car; fifth, he was charged with Violation
of Batas Pambansa Bilang No. 880[145]and Inciting to Sedition; sixth, he
was detained for seven (7) hours; and seventh, he was eventually released for
insufficiency of evidence.
 Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace

officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense.

(b) When an offense has just been committed and he has

probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it;
and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner

Davids warrantless arrest. During the inquest for the charges of inciting to
sedition andviolation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the
invective Oust Gloria Nowand their erroneous assumption that petitioner
David was the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered
his immediate release on the ground of insufficiency of evidence. He noted that
petitioner David was not wearing the subject t-shirt and even if he was wearing it,
such fact is insufficient to charge him with inciting to sedition. Further, he also
stated that there is insufficient evidence for the charge of violation of BP 880 as it
was not even known whether petitioner David was the leader of the rally. [147]

But what made it doubly worse for petitioners David et al. is that not only
was their right against warrantless arrest violated, but also their right to peaceably
assemble.

Section 4 of Article III guarantees:

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.
 Assembly means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that Congress has a
right to prevent. In other words, like other rights embraced in the freedom of
expression, the right to assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of such place, and not for
the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while
they were exercising their right to peaceful assembly. They were not committing
any crime, neither was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from circumstances, the
charges of inciting to seditionand violation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral argument, failed to justify
the arresting officers conduct. In De Jonge v. Oregon,[148] it was held that
peaceable assembly cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a

crime. The holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings cannot be
branded as criminals on that score. The question, if the rights of free
speech and peaceful assembly are not to be preserved, is not as to the
auspices under which the meeting was 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. If the persons assembling have committed crimes elsewhere,
if they have formed or are engaged in a conspiracy against the public
 peace and order, they may be prosecuted for their conspiracy or other
violations of valid laws. But it is a different matter when the
State, instead of prosecuting them for such offenses, seizes
upon mere participation in a peaceable assembly and a lawful
public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483) unwarranted.
Apparently, their dispersal was done merely on the basis of Malacaangs directive
canceling all permits previously issued by local government units. This is
arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of
the principle that freedom of assembly is not to be limited, much less
denied, except on a showing of a clear and present danger of a substantive
evil that the State has a right to prevent.[149] Tolerance is the rule and
limitation is the exception. Only upon a showing that an assembly presents a clear
and present danger that the State may deny the citizens right to exercise
it. Indeed, respondents failed to show or convince the Court that the rallyists
committed acts amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between protected and unprotected
assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is

lodged with the local government units. They have the power to issue permits and
to revoke such permits after due notice and hearing on the determination of the
presence of clear and present danger. Here, petitioners were not even notified and
heard on the revocation of their permits.[150] The first time they learned of it was at
the time of the dispersal. Such absence of notice is a fatal defect. When a persons
right is restricted by government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to procedure.
 G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of
speech i.e., the freedom of the press. Petitioners narration of facts, which the
Solicitor General failed to refute, established the following: first, the Daily
Tribunes offices were searched without warrant; second, the police operatives
seized several materials for publication; third, the search was conducted at about
1:00 o clock in the morning of February 25, 2006; fourth, the search was conducted
in the absence of any official of theDaily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of the Daily
Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential

Chief of Staff Michael Defensor was quoted as saying that such raid was meant to
show a strong presence, to tell media outlets not to connive or do
anything that would help the rebels in bringing down this
government. Director General Lomibao further stated that if they do not
follow the standards and the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 we will recommend
a takeover. National Telecommunications Commissioner Ronald Solis urged
television and radio networks to cooperate with the government for the
duration of the state of national emergency. He warned that his agency will
not hesitate to recommend the closure of any broadcast outfit that violates
rules set out for media coverage during times when the national security is
threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure
lays down the steps in the conduct of search and seizure. Section 4 requires that
a search warrant be issued upon probable cause in connection with one specific
offence to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce. Section
8 mandates that the search of a house, room, or any other premise be made in the
presence of the lawful occupantthereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the warrant
must direct that it be served in the daytime, unless the property is on the person or
in the place ordered to be searched, in which case a direction may be inserted that it
be served at any time of the day or night. All these rules were violated by the CIDG
operatives.

Not only that, the search violated petitioners freedom of the press. The
best gauge of a free and democratic society rests in the degree of freedom enjoyed by
its media. In the Burgos v. Chief of Staff[152] this Court held that --

As heretofore stated, the premises searched were the business

and printing offices of the "Metropolitan Mail" and the "We Forum
newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were
discontinued.

Such closure is in the nature of previous restraint or

censorship abhorrent to the freedom of the press guaranteed
under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state
of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the
political enlightenment and growth of the citizenry.
 While admittedly, the Daily Tribune was not padlocked and sealed like the
Metropolitan Mail and We Forum newspapers in the above case, yet it cannot
be denied that the CIDG operatives exceeded their enforcement duties. The search
and seizure of materials for publication, the stationing of policemen in the vicinity
of the The Daily Tribune offices, and the arrogant warning of government officials to
media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment should he
be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it involves the
most defiant of our citizens. Freedom to comment on public affairs is essential to
the vitality of a representative democracy. It is the duty of the courts to be watchful
for the constitutional rights of the citizen, and against any stealthy encroachments
thereon. The motto should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that
the search of the Tribunes offices and the seizure of its materials for publication
and other papers are illegal; and that the same are inadmissible for any purpose,
thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you

said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and
 you admitted that the policemen were able to get
the clippings. Is that not in admission of the
admissibility of these clippings that were taken
from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were

illegally seized, I think and I know, Your Honor,
and these are inadmissible for any purpose.[155]

xxx xxx xxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the

Daily Tribune; all you have to do is to get those past
issues. So why do you have to go there at 1 oclock
in the morning and without any search
warrant? Did they become suddenly part of the
evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your

Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

 Are you saying that the act of the policeman is
illegal, it is not based on any law, and it is not
based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor,

because there is nothing in 1017 which says that
the police could go and inspect and gather clippings
from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the

facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

 SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I

said, I dont know if it is premature to say this, we
do not condone this. If the people who have
been injured by this would want to sue them,
they can sue and there are remedies for this.
[156]

Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not

contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I dont know whether this will clarify. The acts,

the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You
cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police
officers, that is their responsibility.[157]
 The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional
in every aspect and should result in no constitutional or statutory breaches if
applied according to their letter.

The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to reiterate
that PP 1017 is limited to the calling out by the President of the military to prevent
or suppress lawless violence, invasion or rebellion. When in implementing its
provisions, pursuant to G.O. No. 5, the military and the police committed acts which
violate the citizens rights under the Constitution, this Court has to declare such
acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganibans concurring

opinion, attached hereto, is considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 a

supervening event would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were committed
allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one
similar to it, may not again be issued. Already, there have been media reports on
April 30, 2006 that allegedly PP 1017 would be reimposed if the May 1 rallies
become unruly and violent. Consequently, the transcendental issues raised by
the parties should not be evaded; they must now be resolved to prevent future
constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it

constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP 1017s
extraneous provisions giving the President express or implied power (1) to issue
decrees; (2) to direct the AFP to enforce obedience to all laws even those not related
to lawless violence as well as decrees promulgated by the President; and (3) to
impose standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article
XII of the Constitution, the President, in the absence of a legislation, cannot take
over privately-owned public utility and private business affected with public
interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by
the President acting as Commander-in-Chief addressed to subalterns in the
AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid
standard that the military and the police should take only the necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence. But the words acts of terrorism found in G.O. No. 5 have not
been legally defined and made punishable by Congress and should thus be deemed
deleted from the said G.O. While terrorism has been denounced generally in
media, no law has been enacted to guide the military, and eventually the courts, to
determine the limits of the AFPs authority in carrying out this portion of G.O. No.
5.

On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU
and NAFLU-KMU members; (3) the imposition of standards on media or any prior
restraint on the press; and (4) the warrantless search of the Tribune offices and the
whimsical seizures of some articles for publication and other materials, are not
authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day in
court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due process
bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.

It is well to remember that military power is a means to an end and

substantive civil rights are ends in themselves. How to give the military
the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a
democratic state. During emergency, governmental action may vary in breadth
and intensity from normal times, yet they should not be arbitrary as to unduly
restrain our peoples liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied
the various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two vital
principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.[158]
 WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to enforce laws
not related to lawless violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President to
take over privately-owned public utility or business affected with public interest
without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the

AFP and the PNP should implement PP 1017, i.e. whatever is necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence. Considering that acts of terrorism have not yet been defined and
made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal
and warrantless arrest of the KMU and NAFLU-KMU members during their
rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press, as well
as the warrantless search of the Tribune offices and whimsical seizure of its articles
for publication and other materials, are declared UNCONSTITUTIONAL.
 No costs.

SO ORDERED.

EN BANC

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO

B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY,
and GEN. ANGELO REYES, respondents.

DECISION

KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for
issuance of a temporary restraining order seeking to nullify on constitutional
grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the Marines) to join the Philippine National
Police (the PNP) in visibility patrols around the metropolis.

In view of the alarming increase in violent crimes in Metro Manila, like

robberies, kidnappings and carnappings, the President, in a verbal directive,
ordered the PNP and the Marines to conduct joint visibility patrols for the purpose
of crime prevention and suppression. The Secretary of National Defense, the Chief
of Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP and
the Secretary of the Interior and Local Government were tasked to execute and
implement the said order. In compliance with the presidential mandate, the PNP
Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of
Instruction 02/2000[1] (the LOI) which detailed the manner by which the joint
visibility patrols, called Task Force Tulungan, would be conducted.[2] Task
Force Tulungan was placed under the leadership of the Police Chief of Metro
Manila.
 Subsequently, the President confirmed his previous directive on the deployment
of the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of
Staff of the AFP and the PNP Chief.[3] In the Memorandum, the President expressed
his desire to improve the peace and order situation in Metro Manila through a more
effective crime prevention program including increased police patrols. [4] The
President further stated that to heighten police visibility in the metropolis,
augmentation from the AFP is necessary.[5] Invoking his powers as Commander-in-
Chief under Section 18, Article VII of the Constitution, the President directed the
AFP Chief of Staff and PNP Chief to coordinate with each other for the proper
deployment and utilization of the Marines to assist the PNP in preventing or
suppressing criminal or lawless violence.[6] Finally, the President declared that the
services of the Marines in the anti-crime campaign are merely temporary in nature
and for a reasonable period only, until such time when the situation shall have
improved.[7]

The LOI explains the concept of the PNP-Philippine Marines joint visibility
patrols as follows:

xxx

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila
for the suppression of crime prevention and other serious threats to national security.

3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and former
police/military personnel whose training, skill, discipline and firepower prove well-
above the present capability of the local police alone to handle. The deployment of a
joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in
urban areas will reduce the incidence of crimes specially those perpetrated by active
or former police/military personnel.

4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-
PM visibility patrols to keep Metro Manila streets crime-free, through a sustained
street patrolling to minimize or eradicate all forms of high-profile crimes especially
those perpetrated by organized crime syndicates whose members include those that
are well-trained, disciplined and well-armed active or former PNP/Military
personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro
Manila and to preserve the internal security of the state against insurgents and other
serious threat to national security, although the primary responsibility over Internal
Security Operations still rests upon the AFP.

b. The principle of integration of efforts shall be applied to eradicate all forms of

high-profile crimes perpetrated by organized crime syndicates operating in Metro
Manila. This concept requires the military and police to work cohesively and unify
efforts to ensure a focused, effective and holistic approach in addressing crime
prevention. Along this line, the role of the military and police aside from neutralizing
crime syndicates is to bring a wholesome atmosphere wherein delivery of basic
services to the people and development is achieved. Hand-in-hand with this joint
NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for
the maintenance of peace and order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force

TULUNGAN shall be organized to provide the mechanism, structure, and procedures
for the integrated planning, coordinating, monitoring and assessing the security
situation.

xxx.[8]

The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport. [9]

On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the
instant petition to annul LOI 02/2000 and to declare the deployment of the
Philippine Marines, null and void and unconstitutional, arguing that:
I

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS

VIOLATIVE OF THE CONSTITUTION, IN THAT:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD

JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR
LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE

MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE
CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON

THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.

II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE

ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.[10]

Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions the
validity of the deployment and utilization of the Marines to assist the PNP in law
enforcement.

Without granting due course to the petition, the Court in a Resolution, [11] dated
25 January 2000, required the Solicitor General to file his Comment on the
petition. On 8 February 2000, the Solicitor General submitted his Comment.

The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner has
no legal standing; that the question of deployment of the Marines is not proper for
judicial scrutiny since the same involves a political question; that the organization
and conduct of police visibility patrols, which feature the team-up of one police
officer and one Philippine Marine soldier, does not violate the civilian supremacy
clause in the Constitution.

The issues raised in the present petition are: (1) Whether or not petitioner has
legal standing; (2) Whether or not the Presidents factual determination of the
necessity of calling the armed forces is subject to judicial review; and, (3) Whether
or not the calling of the armed forces to assist the PNP in joint visibility patrols
violates the constitutional provisions on civilian supremacy over the military and
the civilian character of the PNP.

The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the

requisites of standing to raise the issues in the petition. Second, the President did
not commit grave abuse of discretion amounting to lack or excess of jurisdiction nor
did he commit a violation of the civilian supremacy clause of the Constitution.

The power of judicial review is set forth in Section 1, Article VIII of the
Constitution, to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.

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

When questions of constitutional significance are raised, the Court can exercise
its power of judicial review only if the following requisites are complied with,
namely: (1) the existence of an actual and appropriate case; (2) a personal and
substantial interest of the party raising the constitutional question; (3) the exercise
of judicial review is pleaded at the earliest opportunity; and (4) the constitutional
question is the lis mota of the case.[12]

The IBP has not sufficiently complied with the requisites of standing in this
case.
 Legal standing or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as
a result of the governmental act that is being challenged. [13] The term interest
means a material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental
interest.[14] The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.[15]

In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus
standi. The mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing in
this case. This is too general an interest which is shared by other groups and the
whole citizenry. Based on the standards above-stated, the IBP has failed to present
a specific and substantial interest in the resolution of the case. Its fundamental
purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the
standards of the law profession and to improve the administration of justice is alien
to, and cannot be affected by the deployment of the Marines. It should also be noted
that the interest of the National President of the IBP who signed the petition, is his
alone, absent a formal board resolution authorizing him to file the present
action. To be sure, members of the BAR, those in the judiciary included, have
varying opinions on the issue. Moreover, the IBP, assuming that it has duly
authorized the National President to file the petition, has not shown any specific
injury which it has suffered or may suffer by virtue of the questioned governmental
act. Indeed, none of its members, whom the IBP purportedly represents, has
sustained any form of injury as a result of the operation of the joint visibility
patrols. Neither is it alleged that any of its members has been arrested or that their
civil liberties have been violated by the deployment of the Marines. What the IBP
projects as injurious is the supposed militarization of law enforcement which might
threaten Philippine democratic institutions and may cause more harm than good in
the long run. Not only is the presumed injury not personal in character, it is
likewise too vague, highly speculative and uncertain to satisfy the requirement of
standing. Since petitioner has not successfully established a direct and personal
injury as a consequence of the questioned act, it does not possess the personality to
assail the validity of the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to raise constitutional
issues now or in the future. The IBP must, by way of allegations and proof, satisfy
this Court that it has sufficient stake to obtain judicial resolution of the controversy.

Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement of
legal standing when paramount interest is involved. [16] In not a few cases, the Court
has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people.
[17]
Thus, when the issues raised are of paramount importance to the public, the
Court may brush aside technicalities of procedure.[18] In this case, a reading of the
petition shows that the IBP has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as
precedents.Moreover, because peace and order are under constant threat and
lawless violence occurs in increasing tempo, undoubtedly aggravated by the
Mindanao insurgency problem, the legal controversy raised in the petition almost
certainly will not go away. It will stare us in the face again. It, therefore, behooves
the Court to relax the rules on standing and to resolve the issue now, rather than
later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of
the President of the necessity of calling the armed forces, particularly the Marines,
to aid the PNP in visibility patrols. In this regard, the IBP admits that the
deployment of the military personnel falls under the Commander-in-Chief powers of
the President as stated in Section 18, Article VII of the Constitution, specifically,
the power to call out the armed forces to prevent or suppress lawless violence,
invasion or rebellion. What the IBP questions, however, is the basis for the calling of
the Marines under the aforestated provision. According to the IBP, no emergency
exists that would justify the need for the calling of the military to assist the police
force. It contends that no lawless violence, invasion or rebellion exist to warrant the
calling of the Marines. Thus, the IBP prays that this Court review the sufficiency of
the factual basis for said troop [Marine] deployment.[19]
 The Solicitor General, on the other hand, contends that the issue pertaining to
the necessity of calling the armed forces is not proper for judicial scrutiny since it
involves a political question and the resolution of factual issues which are beyond
the review powers of this Court.

As framed by the parties, the underlying issues are the scope of presidential
powers and limits, and the extent of judicial review. But, while this Court gives
considerable weight to the parties formulation of the issues, the resolution of the
controversy may warrant a creative approach that goes beyond the narrow confines
of the issues raised. Thus, while the parties are in agreement that the power
exercised by the President is the power to call out the armed forces, the Court is of
the view that the power involved may be no more than the maintenance of peace and
order and promotion of the general welfare.[20] For one, the realities on the ground do
not show that there exist a state of warfare, widespread civil unrest or
anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a
point discussed in the latter part of this decision. In the words of the late Justice
Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the Presidents powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the commander-in-
chief powers in times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to the
day-to-day problems of maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the horizon. Wide discretion,
within the bounds of law, in fulfilling presidential duties in times of peace is not in
any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the Presidents
exercising as Commander-in-Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law, in
order to keep the peace, and maintain public order and security.

xxx[21]
 Nonetheless, even if it is conceded that the power involved is the Presidents
power to call out the armed forces to prevent or suppress lawless violence, invasion
or rebellion, the resolution of the controversy will reach a similar result.

We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and
thus, not justiciable.

As a general proposition, a controversy is justiciable if it refers to a matter

which is appropriate for court review. [22] It pertains to issues which are inherently
susceptible of being decided on grounds recognized by law. Nevertheless, the Court
does not automatically assume jurisdiction over actual constitutional cases brought
before it even in instances that are ripe for resolution. One class of cases wherein
the Court hesitates to rule on are political questions. The reason is that political
questions are concerned with issues dependent upon the wisdom, not the legality, of
a particular act or measure being assailed. Moreover, the political question being a
function of the separation of powers, the courts will not normally interfere with the
workings of another co-equal branch unless the case shows a clear need for the
courts to step in to uphold the law and the Constitution.

As Taada v. Cuenco[23] puts it, political questions refer to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity,
or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of government. Thus, if an issue is clearly identified
by the text of the Constitution as matters for discretionary action by a particular
branch of government or to the people themselves then it is held to be a political
question. In the classic formulation of Justice Brennan in Baker v. Carr,
[24]
[p]rominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable standards
for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the impossibility of a
courts undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarassment
from multifarious pronouncements by various departments on the one question.

The 1987 Constitution expands the concept of judicial review by providing that
(T)he Judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law. Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [25] Under this definition, the Court cannot agree
with the Solicitor General that the issue involved is a political question beyond the
jurisdiction of this Court to review. When the grant of power is qualified, conditional
or subject to limitations, the issue of whether the prescribed qualifications or
conditions have been met or the limitations respected, is justiciable - the problem
being one of legality or validity, not its wisdom. [26] Moreover, the jurisdiction to
delimit constitutional boundaries has been given to this Court. [27] When political
questions are involved, the Constitution limits the determination as to whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. [28]

By grave abuse of discretion is meant simply capricious or whimsical exercise of

judgment that is patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic manner by reason
of passion or hostility.[29] Under this definition, a court is without power to directly
decide matters over which full discretionary authority has been delegated. But
while this Court has no power to substitute its judgment for that of Congress or of
the President, it may look into the question of whether such exercise has been made
in grave abuse of discretion. [30] A showing that plenary power is granted either
department of government, may not be an obstacle to judicial inquiry, for the
improvident exercise or abuse thereof may give rise to justiciable controversy. [31]

When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power solely
vested in his wisdom.This is clear from the intent of the framers and from the text
of the Constitution itself. The Court, thus, cannot be called upon to overrule the
Presidents wisdom or substitute its own.However, this does not prevent an
examination of whether such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the Presidents decision is totally bereft
of factual basis. The present petition fails to discharge such heavy burden as there
is no evidence to support the assertion that there exist no justification for calling out
the armed forces. There is, likewise, no evidence to support the proposition that
grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the
military. In the performance of this Courts duty of purposeful hesitation [32] before
declaring an act of another branch as unconstitutional, only where such grave abuse
of discretion is clearly shown shall the Court interfere with the Presidents
judgment. To doubt is to sustain.

There is a clear textual commitment under the Constitution to bestow on the

President full discretionary power to call out the armed forces and to determine the
necessity for the exercise of such power. Section 18, Article VII of the Constitution,
which embodies the powers of the President as Commander-in-Chief, provides in
part:

The President shall be the Commander-in-Chief of all armed forces of the

Philippines and whenever it becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ ofhabeas corpus, or place the Philippines or
any part thereof under martial law.

xxx

The full discretionary power of the President to determine the factual basis for
the exercise of the calling out power is also implied and further reinforced in the rest
of Section 18, Article VII which reads, thus:

xxx

Within forty-eight hours from the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.

Under the foregoing provisions, Congress may revoke such proclamation or

suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the revocation
or review of the Presidents action to call out the armed forces. The distinction places
the calling out power in a different category from the power to declare martial law
and the power to suspend the privilege of the writ of habeas corpus, otherwise, the
framers of the Constitution would have simply lumped together the three powers
and provided for their revocation and review without any qualification. Expressio
unius est exclusio alterius. Where the terms are expressly limited to certain
matters, it may not, by interpretation or construction, be extended to other matters.
[33]
That the intent of the Constitution is exactly what its letter says, i.e., that the
power to call is fully discretionary to the President, is extant in the deliberation of
the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a graduated
power of the President as Commander-in-Chief. First, he can call out such Armed
Forces as may be necessary to suppress lawless violence; then he can suspend the
privilege of the writ of habeas corpus, then he can impose martial law. This is a
graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege
of the writ of habeas corpus, his judgment is subject to review. We are making it
subject to review by the Supreme Court and subject to concurrence by the National
Assembly. But when he exercises this lesser power of calling on the Armed Forces,
when he says it is necessary, it is my opinion that his judgment cannot be reviewed
by anybody.

xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the matter
can be handled by the first sentence: The President may call out such armed forces
to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is
sufficient for handling imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there is imminent

danger, the matter can be handled by the First Sentence: The President....may call
out such Armed Forces to prevent or suppress lawless violence, invasion or rebellion.
So we feel that that is sufficient for handling imminent danger, of invasion or
rebellion, instead of imposing martial law or suspending the writ of habeas corpus,
he must necessarily have to call the Armed Forces of the Philippines as their
Commander-in-Chief. Is that the idea?

MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.[34]

The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the power to call out because it is considered as the lesser and
more benign power compared to the power to suspend the privilege of the writ
of habeas corpus and the power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and individual freedoms,
and thus necessitating safeguards by Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the
power to suspend the privilege of the writ of habeas corpus or to impose martial law,
two conditions must concur: (1) there must be an actual invasion or rebellion and,
(2) public safety must require it. These conditions are not required in the case of the
power to call out the armed forces. The only criterion is that whenever it becomes
necessary, the President may call the armed forces to prevent or suppress lawless
violence, invasion or rebellion." The implication is that the President is given full
discretion and wide latitude in the exercise of the power to call as compared to the
two other powers.

If the petitioner fails, by way of proof, to support the assertion that the
President acted without factual basis, then this Court cannot undertake an
independent investigation beyond the pleadings. The factual necessity of calling out
the armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several factors
which are not always accessible to the courts. Besides the absence of textual
standards that the court may use to judge necessity, information necessary to arrive
at such judgment might also prove unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that there is a need
to call out the armed forces may be of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence

network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power to call,
on-the-spot decisions may be imperatively necessary in emergency situations to
avert great loss of human lives and mass destruction of property. Indeed, the
decision to call out the military to prevent or suppress lawless violence must be done
swiftly and decisively if it were to have any effect at all. Such a scenario is not
farfetched when we consider the present situation in Mindanao, where the
insurgency problem could spill over the other parts of the country. The
determination of the necessity for the calling out power if subjected to unfettered
judicial scrutiny could be a veritable prescription for disaster, as such power may be
unduly straitjacketed by an injunction or a temporary restraining order every time
it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President,
as Commander-in-Chief of the Armed Forces, full discretion to call forth the military
when in his judgment it is necessary to do so in order to prevent or suppress lawless
violence, invasion or rebellion. Unless the petitioner can show that the exercise of
such discretion was gravely abused, the Presidents exercise of judgment deserves to
be accorded respect from this Court.

The President has already determined the necessity and factual basis for calling
the armed forces. In his Memorandum, he categorically asserted that, [V]iolent
crimes like bank/store robberies, holdups, kidnappings and carnappings continue to
occur in Metro Manila...[35] We do not doubt the veracity of the Presidents
assessment of the situation, especially in the light of present developments. The
Court takes judicial notice of the recent bombings perpetrated by lawless elements
in the shopping malls, public utilities, and other public places. These are among the
areas of deployment described in the LOI 2000. Considering all these facts, we hold
that the President has sufficient factual basis to call for military aid in law
enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy
clause nor does it infringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines, the
civilian task of law enforcement is militarized in violation of Section 3, Article
II[36] of the Constitution.

We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The participation of
the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the provisions
of the LOI itself, which sufficiently provides the metes and bounds of the Marines
authority. It is noteworthy that the local police forces are the ones in charge of the
visibility patrols at all times, the real authority belonging to the PNP. In fact, the
Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint
visibility patrols.[37] Under the LOI, the police forces are tasked to brief or orient the
soldiers on police patrol procedures.[38] It is their responsibility to direct and manage
the deployment of the Marines.[39] It is, likewise, their duty to provide the necessary
equipment to the Marines and render logistical support to these soldiers. [40] In view
of the foregoing, it cannot be properly argued that military authority is supreme
over civilian authority. Moreover, the deployment of the Marines to assist the PNP
does not unmake the civilian character of the police force. Neither does it amount to
an insidious incursion of the military in the task of law enforcement in violation of
Section 5(4), Article XVI of the Constitution.[41]

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff
of the AFP, by his alleged involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the aforecited provision. The
real authority in these operations, as stated in the LOI, is lodged with the head of a
civilian institution, the PNP, and not with the military. Such being the case, it does
not matter whether the AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority or control over the
same.Since none of the Marines was incorporated or enlisted as members of the
PNP, there can be no appointment to civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not destroy the civilian
character of the PNP.

Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the civilian
supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authorities in various

forms persists in Philippine jurisdiction. The Philippine experience reveals that it is
not averse to requesting the assistance of the military in the implementation and
execution of certain traditionally civil functions. As correctly pointed out by the
Solicitor General, some of the multifarious activities wherein military aid has been
rendered, exemplifying the activities that bring both the civilian and the military
together in a relationship of cooperation, are:

1. Elections;[42]

2. Administration of the Philippine National Red Cross;[43]

3. Relief and rescue operations during calamities and disasters;[44]

4. Amateur sports promotion and development;[45]

5. Development of the culture and the arts;[46]

6. Conservation of natural resources;[47]

7. Implementation of the agrarian reform program;[48]

 8. Enforcement of customs laws;[49]

9. Composite civilian-military law enforcement activities;[50]

10. Conduct of licensure examinations;[51]

11. Conduct of nationwide tests for elementary and high school students;[52]

12. Anti-drug enforcement activities;[53]

13. Sanitary inspections;[54]

14. Conduct of census work;[55]

15. Administration of the Civil Aeronautics Board;[56]

16. Assistance in installation of weather forecasting devices;[57]

17. Peace and order policy formulation in local government units. [58]

This unquestionably constitutes a gloss on executive power resulting from a

systematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned.[59] What we have here is mutual support and
cooperation between the military and civilian authorities, not derogation of civilian
supremacy.

In the United States, where a long tradition of suspicion and hostility towards
the use of military force for domestic purposes has persisted, [60] and whose
Constitution, unlike ours, does not expressly provide for the power to call, the use of
military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act[61] of the US, the use of the
military in civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:

1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the

Constitution or Act of Congress, willfully uses any part of the Army or the Air Force
as posse comitatus or otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than two years, or both.[62]
 To determine whether there is a violation of the Posse Comitatus Act in the use
of military personnel, the US courts[63] apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens
to the exercise of military power which was regulatory, proscriptive, or
compulsory[64] George Washington Law Review, pp. 404-433 (1986), which discusses
the four divergent standards for assessing acceptable involvement of military
personnel in civil law enforcement. See likewise HONORED IN THE BREECH:
PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY
FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or
prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to mean
that military involvement, even when not expressly authorized by the Constitution
or a statute, does not violate the Posse Comitatus Act unless it actually regulates,
forbids or compels some conduct on the part of those claiming relief. A mere threat
of some future injury would be insufficient.(emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no violation of the civilian supremacy
clause in the Constitution is committed. On this point, the Court agrees with the
observation of the Solicitor General:

3. The designation of tasks in Annex A[65] does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not
control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)
[68]
of Annex A. These soldiers, second, also have no power to prohibit or
condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the
nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No. 8(c)
[70]
of Annex A, are all low impact and defensive in character. The conclusion is
that there being no exercise of regulatory, proscriptive or compulsory military
 power, the deployment of a handful of Philippine Marines constitutes no
impermissible use of military power for civilian law enforcement.[71]

It appears that the present petition is anchored on fear that once the armed
forces are deployed, the military will gain ascendancy, and thus place in peril our
cherished liberties. Such apprehensions, however, are unfounded. The power to call
the armed forces is just that - calling out the armed forces. Unless, petitioner IBP
can show, which it has not, that in the deployment of the Marines, the President has
violated the fundamental law, exceeded his authority or jeopardized the civil
liberties of the people, this Court is not inclined to overrule the Presidents
determination of the factual basis for the calling of the Marines to prevent or
suppress lawless violence.

One last point. Since the institution of the joint visibility patrol in January,
2000, not a single citizen has complained that his political or civil rights have been
violated as a result of the deployment of the Marines. It was precisely to safeguard
peace, tranquility and the civil liberties of the people that the joint visibility patrol
was conceived. Freedom and democracy will be in full bloom only when people feel
secure in their homes and in the streets, not when the shadows of violence and
anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-

Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.

SEPARATE OPINION

PUNO, J.:
 If the case at bar is significant, it is because of the government attempt to foist
the political question doctrine to shield an executive act done in the exercise of
the commander-in-chief powers from judicial scrutiny. If the attempt succeeded,
it would have diminished the power of judicial review and weakened the
checking authority of this Court over the Chief Executive when he
exercises his commander-in-chief powers. The attempt should remind us of
the tragedy that befell the country when this Court sought refuge in the
political question doctrine and forfeited its most important role as
protector of the civil and political rights of our people. The ongoing
conflict in Mindanao may worsen and can force the Chief Executive to
resort to the use of his greater commander-in-chief powers, hence, this
Court should be extra cautious in assaying similar attempts. A laid back
posture may not sit well with our people considering that the 1987
Constitution strengthened the checking powers of this Court and
expanded its jurisdiction precisely to stop any act constituting xxx grave
abuse of jurisdiction xxx on the part of any branch or instrumentality of
the Government.1

The importance of the issue at bar includes this humble separate opinion. We
can best perceive the different intersecting dimensions of the political question
doctrine by viewing them from the broader canvass of history. Political questions are
defined as those questions which under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of government. 2 They have
two aspects: (1) those matters that are to be exercised by the people in their primary
political capacity and (2) matters which have been specifically delegated to some
other department or particular office of the government, with discretionary power to
act.3 The exercise of the discretionary power of the legislative or executive branch of
government was often the area where the Court had to wrestle with the political
question doctrine.4

A brief review of some of our case law will thus give us a sharper perspective of
the political question doctrine. This question confronted the Court as early as 1905
in the case ofBarcelon v. Baker.5 The Governor-General of the Philippine Islands,
pursuant to a resolution of the Philippine Commission, suspended the privilege of
the writ of habeas corpus in Cavite and Batangas based on a finding of open
insurrection in said provinces. Felix Barcelon, who was detained by constabulary
officers in Batangas, filed a petition for the issuance of a writ of habeas corpus
alleging that there was no open insurrection in Batangas. The issue to resolve was
whether or not the judicial department may investigate the facts upon which the
legislative (the Philippine Commission) and executive (the Governor-General)
branches of government acted in suspending the privilege of the writ.

The Court ruled that under our form of government, one department has no
authority to inquire into the acts of another, which acts are performed within the
discretion of the other department.6 Surveying American law and jurisprudence, it
held that whenever a statute gives discretionary power to any person, to be
exercised by him upon his own opinion of certain facts, the statute constitutes him
the sole judge of the existence of those facts.7 Since the Philippine Bill of 1902
empowered the Philippine Commission and the Governor-General to suspend the
privilege of the writ of habeas corpus, this power is exclusively within the
discretion of the legislative and executive branches of government. The exercise of
this discretion is conclusive upon the courts.8

The Court further held that once a determination is made by the executive and
legislative departments that the conditions justifying the assailed acts exists, it will
presume that the conditions continue until the same authority decide that they no
longer exist.9 It adopted the rationale that the executive branch, thru its civil and
military branches, are better situated to obtain information about peace and order
from every corner of the nation, in contrast with the judicial department, with its
very limited machinery.10 The seed of the political question doctrine was thus
planted in Philippine soil.

The doctrine barring judicial review because of the political question

doctrine was next applied to the internal affairs of the legislature. The
Court refused to interfere in the legislative exercise of disciplinary power over its
own members. In the 1924 case of Alejandrino v. Quezon,11 Alejandrino, who was
appointed Senator by the Governor-General, was declared by Senate Resolution as
guilty of disorderly conduct for assaulting another Senator in the course of a debate,
and was suspended from office for one year. Senator Alejandrino filed a petition for
mandamus and injunction to compel the Senate to reinstate him. The Court held
that under the Jones Law, the power of the Senate to punish its members for
disorderly behavior does not authorize it to suspend an appointive member from the
exercise of his office. While the Court found that the suspension was illegal, it
refused to issue the writ of mandamus on the ground that "the Supreme Court does
not possess the power of coercion to make the Philippine Senate take any particular
action. [T]he Philippine Legislature or any branch thereof cannot be directly
controlled in the exercise of their legislative powers by any judicial process." 12

The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino,13 three senators-elect who had been prevented from taking their oaths of
office by a Senate resolution repaired to this Court to compel their colleagues to
allow them to occupy their seats contending that only the Electoral Tribunal had
jurisdiction over contests relating to their election, returns and
qualifications. Again, the Court refused to intervene citing Alejandrino and
affirmed the inherent right of the legislature to determine who shall be admitted to
its membership.

In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight

representatives who were proclaimed elected by Comelec were not allowed by
Congress to take part in the voting for the passage of the Parity amendment to the
Constitution. If their votes had been counted, the affirmative votes in favor of the
proposed amendment would have been short of the necessary three-fourths vote in
either House of Congress to pass the amendment. The amendment was eventually
submitted to the people for ratification. The Court declined to intervene and held
that a proposal to amend the Constitution is a highly political function performed by
Congress in its sovereign legislative capacity.15

In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed

the legality of his detention ordered by the Senate for his refusal to answer
questions put to him by members of one of its investigating committees. This Court
refused to order his release holding that the process by which a contumacious
witness is dealt with by the legislature is a necessary concomitant of the legislative
process and the legislature's exercise of its discretionary authority is not subject to
judicial interference.

In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional
line. Congressman Sergio Osmena, Jr. was suspended by the House of
Representatives for serious disorderly behavior for making a privilege speech
imputing "malicious charges" against the President of the Philippines. Osmena, Jr.
invoked the power of review of this Court but the Court once more did not interfere
with Congress' power to discipline its members.
 The contours of the political question doctrine have always been tricky. To be
sure, the Court did not always stay its hand whenever the doctrine is invoked. In the
1949 case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was deposed
and replaced, questioned his successor's title claiming that the latter had been
elected without a quorum. The petition was initially dismissed on the ground that
the selection of Senate President was an internal matter and not subject to judicial
review.19 On reconsideration, however, the Court ruled that it could assume
jurisdiction over the controversy in light of subsequent events justifying
intervention among which was the existence of a quorum. 20 Though the petition was
ultimately dismissed, the Court declared respondent Cuenco as the legally elected
Senate President.

In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a
dispute involving the formation and composition of the Senate Electoral Tribunal. It
rejected the Solicitor General's claim that the dispute involved a political question.
Instead, it declared that the Senate is not clothed with "full discretionary authority"
in the choice of members of the Senate Electoral Tribunal and the exercise of its
power thereon is subject to constitutional limitations which are mandatory in
nature.22 It held that under the Constitution, the membership of the Senate
Electoral Tribunal was designed to insure the exercise of judicial impartiality in the
disposition of election contests affecting members of the lawmaking body. 23 The
Court then nullified the election to the Senate Electoral Tribunal made by Senators
belonging to the party having the largest number of votes of two of their party
members but purporting to act on behalf of the party having the second highest
number of votes.

In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on
whether Congress had formed the Commission on Appointments in accordance with
the Constitution and found that it did not. It declared that the Commission on
Appointments is a creature of the Constitution and its power does not come from
Congress but from the Constitution.

The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not
Congress, acting as a constituent assembly in proposing amendments to the
Constitution violates the Constitution was held to be a justiciable and not a political
issue. In Gonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution-which was being submitted to the people for ratification-satisfied
the three-fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate,
Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In the
first, we held that the officers and employees of the Senate Electoral Tribunal are
under its supervision and control, not of that of the Senate President, as claimed by
the latter; in the second, this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third, we nullified the election, by
Senators belonging to the party having the largest number of votes in said chamber,
purporting to act on behalf of the party having the second largest number of votes
therein, of two (2) Senators belonging to the first party, as members, for the second
party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representative
districts for the House of Representatives upon the ground that the apportionment
had not been made as may be possible according to the number of inhabitants of
each province. Thus, we rejected the theory, advanced in these four cases, that the
issues therein raised were political questions the determination of which is beyond
judicial review.27

The Court explained that the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative powers to
Congress. As a constituent assembly, the members of Congress derive their
authority from the fundamental law and they do not have the final say on whether
their acts are within or beyond constitutional limits. 28 This ruling was reiterated
in Tolentino which held that acts of a constitutional convention called for the
purpose of proposing amendments to the Constitution are at par with acts of
Congress acting as a constituent assembly.29

In sum, this Court brushed aside the political question doctrine and
assumed jurisdiction whenever it found constitutionally-imposed limits on
the exercise of powers conferred upon the Legislature.30

The Court hewed to the same line as regards the exercise of Executive
power. Thus, the respect accorded executive discretion was observed in Severino v.
Governor-General,31where it was held that the Governor-General, as head of the
executive department, could not be compelled by mandamus to call a special election
in the town of Silay for the purpose of electing a municipal president. Mandamus
and injunction could not lie to enforce or restrain a duty which is discretionary. It
was held that when the Legislature conferred upon the Governor-General powers
and duties, it did so for the reason that he was in a better position to know the
needs of the country than any other member of the executive department, and with
full confidence that he will perform such duties as his best judgment dictates. 32

Similarly, in Abueva v. Wood,33 the Court held that the Governor-General

could not be compelled by mandamus to produce certain vouchers showing the
various expenditures of the Independence Commission. Under the principle of
separation of powers, it ruled that it was not intended by the Constitution that one
branch of government could encroach upon the field of duty of the other. Each
department has an exclusive field within which it can perform its part within
certain discretionary limits.34 It observed that "the executive and legislative
departments of government are frequently called upon to deal with what are known
as political questions, with which the judicial department of government has no
intervention. In all such questions, the courts uniformly refused to intervene for the
purpose of directing or controlling the actions of the other department; such
questions being many times reserved to those departments in the organic law of the
state."35

In Forties v. Tiaco,36 the Court also refused to take cognizance of a case

enjoining the Chief Executive from deporting an obnoxious alien whose continued
presence in the Philippines was found by him to be injurious to the public
interest. It noted that sudden and unexpected conditions may arise, growing out of
the presence of untrustworthy aliens, which demand immediate action. The
President's inherent power to deport undesirable aliens is universally denominated
as political, and this power continues to exist for the preservation of the peace and
domestic tranquility of the nation.37

In Manalang v. Quitoriano,38 the Court also declined to interfere in the

exercise of the President's appointing power. It held that the appointing power is the
exclusive prerogative of the President, upon which no limitations may be imposed by
Congress, except those resulting from the need of securing concurrence of the
Commission on Appointments and from the exercise of the limited legislative power
to prescribe qualifications to a given appointive office.
 We now come to the exercise by the President of his powers as
Commander-in-Chief vis-a-vis the political question doctrine. In the 1940's, this
Court has held that as Commander-in-Chief of the Armed Forces, the President has
the power to determine whether war, in the legal sense, still continues or has
terminated. It ruled that it is within the province of the political department and
not of the judicial department of government to determine when war is at end. 39

In 1952, the Court decided the landmark case of Montenegro v.

Castaneda. President Quirino suspended the privilege of the writ of habeas
40

corpus for persons detained or to be detained for crimes of sedition, insurrection or

rebellion. The Court, citing Barcelon, declared that the authority to decide
whether the exigency has arisen requiring the suspension of the privilege belongs to
the President and his decision is final and conclusive on the courts.41

Barcelon was the ruling case law until the 1971 case of Lansang v.
Garcia came.42 Lansang reversed the previous cases and held that the suspension
of the privilege of the writ of habeas corpus was not a political question. According
to the Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily
on Martin v. Mott, which involved the U.S. President's power to call out the militia
which is a much broader power than suspension of the privilege of the writ; and (2)
the privilege was suspended by the American Governor-General whose act, as
representative of the sovereign affecting the freedom of its subjects, could not be
equated with that of the President of the Philippines dealing with the freedom of
the sovereign Filipino people.

The Court declared that the power to suspend the privilege of the writ
of habeas corpus is neither absolute nor unqualified because the
Constitution sets limits on the exercise of executive discretion on the
matter. These limits are: (1) that the privilege must not be suspended except only
in cases of invasion, insurrection or rebellion or imminent danger thereof; and (2)
when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for the suspension shall
exist. The extent of the power which may be inquired into by courts is defined by
these limitations.43

On the vital issue of how the Court may inquire into the President's exercise of
power, it ruled that the function of the Court is not to supplant but merely to check
the Executive; to ascertain whether the President has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. Judicial inquiry is confined to the question of
whether the President did not act arbitrarily.44 Using this yardstick, the Court found
that the President did not.

The emergency period of the 1970's flooded the Court with cases which raised
the political question defense. The issue divided the Court down the
middle. Javellana v. Executive Secretary 45 showed that while a majority of the
Court held that the issue of whether or not the 1973 Constitution had been ratified
in accordance with the 1935 Constitution was justiciable, a majority also ruled that
the decisive issue of whether the 1973 Constitution had come into force and effect,
with or without constitutional ratification, was a political question. 46

The validity of the declaration of martial law by then President Marcos was next
litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's
declaration of martial law.On whether the validity of the imposition of martial law
was a political or justiciable question, the Court was almost evenly divided. One-half
embraced the political question position and the other half subscribed to the
justiciable position in Lansang. Those adhering to the political question doctrine
used different methods of approach to it.48

In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v.

Enrile.49 The petitioners therein were arrested and detained by the Philippine
Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners
sought the issuance of a writ of habeas corpus. The Court found that the PCO had
the function of validating a person's detention for any of the offenses covered in
Proclamation No. 2045 which continued in force the suspension of the privilege of
the writ of habeas corpus. It held that the issuance of the PCO by the President was
not subject to judicial inquiry.50 It went further by declaring that there was a need
to re-examine Lansang with a view to reverting to Barcelon and Montenegro. It
observed that in times of war or national emergency, the President must be given
absolute control for the very life of the nation and government is in great peril. The
President, it intoned, is answerable only to his conscience, the people, and God. 51

But barely six (6) days after Garcia-Padilla, the Court promulgated Morales,
Jr. v. Enrile52 reiterating Lansang. It held that by the power of judicial review, the
Court must inquire into every phase and aspect of a person's detention from the
moment he was taken into custody up to the moment the court passes upon the
merits of the petition. Only after such a scrutiny can the court satisfy itself that the
due process clause of the Constitution has been met.53

It is now history that the improper reliance by the Court on the

political question doctrine eroded the people's faith in its capacity to
check abuses committed by the then Executive in the exercise of his
commander-in-chief powers, particularly violations against human
rights. The refusal of courts to be pro-active in the exercise of its checking
power drove the people to the streets to resort to extralegal remedies. They
gave birth to EDSA.

Two lessons were not lost to the members of the Constitutional Commission
that drafted the 1987 Constitution. The first was the need to grant this Court the
express power to review the exercise of the powers as commander-in-chief by the
President and deny it of any discretion to decline its
exercise. The second was the need to compel the Court to be pro-activeby
expanding its jurisdiction and, thus, reject its laid back stance against acts
constituting grave abuse of discretion on the part of any branch or instrumentality
of government. Then Chief Justice Roberto Concepcion, a member of the
Constitutional Commission, worked for the insertion of the second paragraph of
Section 1, Article VIII in the draft Constitution,54 which reads:

"Sec. 1. x x x.

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

The language of the provision clearly gives the Court the power to strike down acts
amounting to grave abuse of discretion of both the legislative and executive
branches of government.

We should interpret Section 18, Article VII of the 1987 Constitution in light of
our constitutional history. The provision states:
"Sec. 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof
under martial law. Within forty-eight hours from the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to Congress. The Congress, voting jointly, by
a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.

The Supreme Court may review, in an appropriate proceeding filed by any

citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within thirty days from its filing.

x x x."

It is clear from the foregoing that the President, as Commander-in-Chief of

the armed forces of the Philippines, may call out the armed forces subject
to two conditions: (1) whenever it becomes necessary; and (2) to prevent or
suppress lawless violence, invasion or rebellion. Undeniably, these
conditions lay down the sine qua requirement for the exercise of the power
and the objective sought to be attained by the exercise of the power. They
define the constitutional parameters of the calling out power. Whether or
not there is compliance with these parameters is a justiciable issue and is
not a political question.
 I am not unaware that in the deliberations of the Constitutional Commission,
Commissioner Bernas opined that the President's exercise of the "calling out power,"
unlike the suspension of the privilege of the writ of habeas corpus and the
declaration of martial law, is not a justiciable issue but a political question and
therefore not subject to judicial review.

It must be borne in mind, however, that while a member's opinion expressed on

the floor of the Constitutional Convention is valuable, it is not necessarily expressive
of the people's intent.55 The proceedings of the Convention are less conclusive on the
proper construction of the fundamental law than are legislative proceedings of the
proper construction of a statute, for in the latter case it is the intent of the
legislature the courts seek, while in the former, courts seek to arrive at the intent of
the people through the discussions and deliberations of their representatives. 56 The
conventional wisdom is that the Constitution does not derive its force from the
convention which framed it, but from the people who ratified it, the intent to be
arrived at is that of the people.57

It is true that the third paragraph of Section 18, Article VII of the 1987
Constitution expressly gives the Court the power to review the sufficiency
of the factual bases used by the President in the suspension of the
privilege of the writ of habeas corpus and the declaration of martial law. It
does not follow, however, that just because the same provision did not
grant to this Court the power to review the exercise of the calling out
power by the President, ergo, this Court cannot pass upon the validity of
its exercise.

Given the light of our constitutional history, this express grant of

power merely means that the Court cannot decline the exercise of its
power because of the political question doctrine as it did in the past. In
fine, the express grant simply stresses the mandatory duty of this Court to
check the exercise of the commander-in-chief powers of the President. It
eliminated the discretion of the Court not to wield its power of review thru
the use of the political question doctrine.

It may be conceded that the calling out power may be a "lesser power" compared
to the power to suspend the privilege of the writ of habeas corpus and the power to
declare martial law. Even then, its exercise cannot be left to the absolute discretion
of the Chief Executive as Commander-in-Chief of the armed forces, as its impact on
the rights of our people protected by the Constitution cannot be downgraded. We
cannot hold that acts of the commander-in-chief cannot be reviewed on the ground
that they have lesser impact on the civil and political rights of our people. The
exercise of the calling out power may be "benign" in the case at bar but may not be
so in future cases.

The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and
Concurring Opinion in Lansang that it would be dangerous and misleading to push
the political question doctrine too far, is apropos. It will not be complementary to
the Court if it handcuffs itself to helplessness when a grievously injured citizen
seeks relief from a palpably unwarranted use of presidential or military power,
especially when the question at issue falls in the penumbra between the "political"
and the "justiciable. "58

We should not water down the ruling that deciding whether a matter has been
committed by the Constitution to another branch of government, or whether the
action of that branch exceeds whatever authority has been committed, is a delicate
exercise in constitutional interpretation, and is a responsibility of the Court as
ultimate interpreter of the fundamental law.59 When private justiciable rights
are involved in a suit, the Court must not refuse to assume jurisdiction even
though questions of extreme political importance are necessarily involved. 60Every
officer under a constitutional government must act according to law and subject to
the controlling power of the people, acting through the courts, as well as through the
executive and legislative. One department is just as representative of the other, and
the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official
action.61 This historic role of the Court is the foundation stone of a government of
laws and not of men.62

I join the Decision in its result.

SEPARATE OPINION

VITUG, J.:
 In the equation of judicial power, neither of two extremes - one totalistic and the
other bounded - is acceptable nor ideal. The 1987 Constitution has introduced its
definition of the term "judicial power" to be that which -

x x x includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether
or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.1

It is not meant that the Supreme Court must be deemed vested with the awesome
power of overseeing the entire bureaucracy, let alone of institutionalizing judicial
absolutism, under its mandate. But while this Court does not wield unlimited
authority to strike down an act of its two co-equal branches of government, it must
not wither under technical guise on its constitutionally ordained task to intervene,
and to nullify if need be, any such act as and when it is attended by grave abuse of
discretion amounting to lack or excess of jurisdiction. The proscription then
against an interposition by the Court into purely political questions, heretofore
known, no longer holds within that context.

Justice Feria, in the case of Avelino vs. Cuenco, 2 has aptly elucidated in his
concurring opinion:

"x x x [I] concur with the majority that this Court has jurisdiction over cases like the
present x x x so as to establish in this country the judicial supremacy, with the
Supreme Court as the final arbiter, to see that no one branch or agency of the
government transcends the Constitution, not only in justiceable but political
questions as well."3

It is here when the Court must have to depart from the broad principle of
separation of powers that disallows an intrusion by it in respect to the purely
political decisions of its independent and coordinate agencies of government.

The term grave abuse of discretion is long understood in our jurisprudence as

being, and confined to, a capricious and whimsical or despotic exercise of judgment
amounting to lack or excess of jurisdiction. Minus the not-so-unusual exaggerations
often invoked by litigants in the duel of views, the act of the President in simply
calling on the Armed Forces of the Philippines, an executive prerogative,
to assist the Philippine National Police in "joint visibility patrols" in the
metropolis does not, I believe, constitute grave abuse of discretion that would now
warrant an exercise by the Supreme Court of its extraordinary power as so
envisioned by the fundamental law.

Accordingly, I vote for the dismissal of the petition.

MENDOZA, J., concurring and dissenting:

I concur in the opinion of the Court insofar as it holds petitioner to be without

standing to question the validity of LOI 02/2000 which mandates the Philippine
Marines to conduct "joint visibility" patrols with the police in Metro Manila. But I
dissent insofar as the opinion dismisses the petition in this case on other grounds. I
submit that judgment on the substantive constitutional issues raised by petitioner
must await an actual case involving real parties with "injuries" to show as a result
of the operation of the challenged executive action. While as an organization for the
advancement of the rule of law petitioner has an interest in upholding the
Constitution, its interest is indistinguishable from the interest of the rest of the
citizenry and falls short of that which is necessary to give petitioner standing.

As I have indicated elsewhere, a citizens' suit challenging the constitutionality

of governmental action requires that (1) the petitioner must have suffered an "injury
in fact" of an actual or imminent nature; (2) there must be a causal connection
between the injury and the conduct complained of; and (3) the injury is likely to be
redressed by a favorable action by this Court. 1The "injury in fact" test requires more
than injury to a cognizable interest. It requires that the party seeking review be
himself among those injured.2

My insistence on compliance with the standing requirement is grounded in the

conviction that only a party injured by the operation of the governmental action
challenged is in the best position to aid the Court in determining the precise nature
of the problem presented. Many a time we have adverted to the power of judicial
review as an awesome power not to be exercised save in the most exigent
situation. For, indeed, sound judgment on momentous constitutional questions is
not likely to be reached unless it is the result of a clash of adversary arguments
which only parties with direct and specific interest in the outcome of the controversy
can make. This is true not only when we strike down a law or official action but also
when we uphold it.
 In this case, because of the absence of parties with real and substantial interest
to protect, we do not have evidence on the effect of military presence in malls and
commercial centers,i.e., whether such presence is coercive or benign. We do not
know whether the presence of so many marines and policemen scares shoppers,
tourists, and peaceful civilians, or whether it is reassuring to them. To be sure, the
deployment of troops to such places is not like parading them at the Luneta on
Independence Day. Neither is it, however, like calling them out because of actual
fighting or the outbreak of violence.

We need to have evidence on these questions because, under the Constitution,

the President's power to call out the armed forces in order to suppress lawless
violence, invasion or rebellion is subject to the limitation that the exercise of this
power is required in the interest of public safety.3

Indeed, whether it is the calling out of the armed forces alone in order to
suppress lawless violence, invasion or rebellion or also the suspension of the
privilege of the writ of habeas corpus or the proclamation of martial law (in case of
invasion or rebellion), the exercise of the President's powers as commander-in-chief,
requires proof - not mere assertion.4 As has been pointed out, "Standing is not `an
ingenious academic exercise in the conceivable' . . . but requires . . . a factual
showing of perceptible harm."5

Because of the absence of such record evidence, we are left to guess or even
speculate on these questions. Thus, at one point, the majority opinion says that
what is involved here is not even the calling out of the armed forces but only the use
of marines for law enforcement. (p. 13) At another point, however, the majority
opinion somersaults and says that because of bombings perpetrated by lawless
elements, the deployment of troops in shopping centers and public utilities is
justified. (p. 24)

We are likely to err in dismissing the suit brought in this case on the ground
that the calling out of the military does not violate the Constitution, just as we are
likely to do so if we grant the petition and invalidate the executive issuance in
question. For indeed, the lack of a real, earnest and vital controversy can only
impoverish the judicial process. That is why, as Justice Laurel emphasized in
the Angara case, "this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the very lis mota presented."6
 We are told, however, that the issues raised in this case are of "paramount
interest" to the nation. It is precisely because the issues raised are of paramount
importance that we should all the more forego ruling on the constitutional issues
raised by petitioner and limit the dismissal of this petition on the ground of lack of
standing of petitioner. A Fabian policy of leaving well enough alone is a counsel of
prudence.

For these reasons and with due appreciation of the scholarly attention lavished
by the majority opinion on the constitutional questions raised, I am constrained to
limit my concurrence to the dismissal of this suit on the ground of lack of standing
of petitioner and the consequent lack of an actual case or controversy.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed

OPOSA, minors, and represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II
and MA. CONCEPCION, all surnamed MISA, minors and represented by
their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE
MARIE ALFARO, minor, represented by her parents JOSE and MARIA
VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented
by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO,
CARLO JOAQUIN T. NARVASA, minor, represented by his parents
GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed
SAENZ, minors, represented by their parents ROBERTO and AURORA
SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN,
all surnamed KING, minors, represented by their parents MARIO and
HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all
surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA,
minors, represented by their parents ANTONIO and MARICA ABAYA,
MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors,
represented by their parents MARIO and LINA CARDAMA, CLARISSA,
ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
represented by their parents RICARDO and MARISSA OPOSA, PHILIP
JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT,
minors, represented by their parents JOSE MAX and VILMI QUIPIT,
BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR.
and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK,
INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the
Secretary of the Department of Environment and Natural Resources, and
THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC,
Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and
healthful ecology which the petitioners dramatically associate with the twin
concepts of "inter-generational responsibility" and "inter-generational justice."
Specifically, it touches on the issue of whether the said petitioners have a cause of
action to "prevent the misappropriation or impairment" of Philippine rainforests
and "arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before
Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National
Capital Judicial Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc.
(PENI), a domestic, non-stock and non-profit corporation organized for the purpose
of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and
Natural Resources (DENR). His substitution in this petition by the new Secretary,
the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the
petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges
that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and
entitled to the full benefit, use and enjoyment of the natural resource treasure that
is the country's virgin tropical forests." The same was filed for themselves and
others who are equally concerned about the preservation of said resource but are "so
numerous that it is impracticable to bring them all before the Court." The minors
further asseverate that they "represent their generation as well as generations yet
unborn." 4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons

acting in his behalf to

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or

approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5

The complaint starts off with the general averments that the Philippine archipelago
of 7,100 islands has a land area of thirty million (30,000,000) hectares and is
endowed with rich, lush and verdant rainforests in which varied, rare and unique
species of flora and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured and flourished since
time immemorial; scientific evidence reveals that in order to maintain a balanced
and healthful ecology, the country's land area should be utilized on the basis of a
ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a host
of environmental tragedies, such as (a) water shortages resulting from drying up of
the water table, otherwise known as the "aquifer," as well as of rivers, brooks and
streams, (b) salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of Cebu and
the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of
soil fertility and agricultural productivity, with the volume of soil eroded estimated
at one billion (1,000,000,000) cubic meters per annum approximately the size of
the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and consequential
destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by
the entire country, (h) increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising
from the absence of the absorbent mechanism of forests, (j) the siltation and
shortening of the lifespan of multi-billion peso dams constructed and operated for
the purpose of supplying water for domestic uses, irrigation and the generation of
electric power, and (k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued
and deforestation are so capable of unquestionable demonstration that the same
may be submitted as a matter of judicial notice. This notwithstanding, they
expressed their intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16)
million hectares of rainforests constituting roughly 53% of the
country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more

than 1.2 million hectares of said rainforests or four per cent (4.0%) of
the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin
old-growth rainforests are left, barely 2.8% of the entire land mass of
the Philippine archipelago and about 3.0 million hectares of immature
and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have

granted timber license agreements ('TLA's') to various corporations to
cut the aggregate area of 3.89 million hectares for commercial logging
purposes.

A copy of the TLA holders and the corresponding areas covered is

hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per
annum or 25 hectares per hour nighttime, Saturdays, Sundays and
holidays included the Philippines will be bereft of forest resources
after the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and

irreparable damage of this continued trend of deforestation to the
plaintiff minor's generation and to generations yet unborn are evident
and incontrovertible. As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt, experienced
and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and

deforest the remaining forest stands will work great damage and
irreparable injury to plaintiffs especially plaintiff minors and their
successors who may never see, use, benefit from and enjoy this rare
and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or

impairment of the natural resource property he holds in trust for the
benefit of plaintiff minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and

healthful ecology and are entitled to protection by the State in its
capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the

defendant's office. On March 2, 1990, plaintiffs served upon defendant
a final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as

Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's
to the continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's
is an act violative of the rights of plaintiffs, especially plaintiff minors
who may be left with a country that is desertified (sic), bare, barren
and devoid of the wonderful flora, fauna and indigenous cultures which
the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is

manifestly contrary to the public policy enunciated in the Philippine
Environmental Policy which, in pertinent part, states that it is the
policy of the State

(a) to create, develop, maintain and improve conditions under which

man and nature can thrive in productive and enjoyable harmony with
each other;

(b) to fulfill the social, economic and other requirements of present and
future generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is

conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the

aforementioned TLA's is contradictory to the Constitutional policy of
the State to

a. effect "a more equitable distribution of opportunities, income and

wealth" and "make full and efficient use of natural resources (sic)."
(Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources

(sic)" (Section 14, Article XIV,id.);
 d. "protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature."
(Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind

the natural law and violative of plaintiffs' right to self-
preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other
than the instant action to arrest the unabated hemorrhage of the
country's vital life support systems and continued rape of Mother
Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to
Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no
cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the petitioners
maintain that (1) the complaint shows a clear and unmistakable cause of action, (2)
the motion is dilatory and (3) the action presents a justiciable question as it involves
the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned

motion to dismiss. 7 In the said order, not only was the defendant's claim that the
complaint states no cause of action against him and that it raises a political
question sustained, the respondent Judge further ruled that the granting of the
relief prayed for would result in the impairment of contracts which is prohibited by
the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the
Revised Rules of Court and ask this Court to rescind and set aside the dismissal
order on the ground that the respondent Judge gravely abused his discretion in
dismissing the action. Again, the parents of the plaintiffs-minors not only represent
their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the
parties to submit their respective Memoranda after the Office of the Solicitor
General (OSG) filed a Comment in behalf of the respondents and the petitioners
filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of
action as it contains sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations),
Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16,
Article II of the 1987 Constitution recognizing the right of the people to a balanced
and healthful ecology, the concept of generational genocide in Criminal Law and the
concept of man's inalienable right to self-preservation and self-perpetuation
embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave
abuse of discretion in granting Timber License Agreements (TLAs) to cover more
areas for logging than what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment

clause, petitioners maintain that the same does not apply in this case because TLAs
are not contracts. They likewise submit that even if TLAs may be considered
protected by the said clause, it is well settled that they may still be revoked by the
State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any
relief is provided by law. They see nothing in the complaint but vague and nebulous
allegations concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then
reiterate the theory that the question of whether logging should be permitted in the
country is a political question which should be properly addressed to the executive
or legislative branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for the
passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same
cannot be done by the State without due process of law. Once issued, a TLA remains
effective for a certain period of time usually for twenty-five (25) years. During its
effectivity, the same can neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the terms of the agreement or
other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the
requirements of due process.

Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant
and the present respondents did not take issue with this matter. Nevertheless, We
hereby rule that the said civil case is indeed a class suit. The subject matter of the
complaint is of common and general interest not just to several, but to all citizens of
the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative enough
to ensure the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court
are present both in the said civil case and in the instant petition, the latter being
but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that
they represent their generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others of their generation and
for the succeeding generations, file a class suit. Their personality to sue in behalf of
the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization be equitably
10
accessible to the present as well as future generations. Needless to say, every
generation has a responsibility to the next to preserve that rhythm and harmony for
the full enjoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right for
the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now
proceed to the merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration

and evaluation of the issues raised and arguments adduced by the parties, We do
not hesitate to find for the petitioners and rule against the respondent Judge's
challenged order for having been issued with grave abuse of discretion amounting to
lack of jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court

cannot help but agree with the defendant. For although we believe that
plaintiffs have but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal right they are
seeking to enforce and protect, or a specific legal wrong they are
seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and
vague conclusions based on unverified data. In fine, plaintiffs fail to
state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being
impressed with political color and involving a matter of public policy,
may not be taken cognizance of by this Court without doing violence to
 the sacred principle of "Separation of Powers" of the three (3) co-equal
branches of the Government.

The Court is likewise of the impression that it cannot, no matter how

we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements. For to do
otherwise would amount to "impairment of contracts" abhored (sic) by
the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege
with sufficient definiteness a specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the complaint itself belies these
conclusions.

The complaint focuses on one specific fundamental legal right the right to a
balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law. Section 16,
Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony
of nature.

This right unites with the right to health which is provided for in the
preceding section of the same article:

Sec. 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation
aptly and fittingly stressed by the petitioners the advancement of which may
even be said to predate all governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for they are assumed to
exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless
the rights to a balanced and healthful ecology and to health are mandated as state
policies by the Constitution itself, thereby highlighting their continuing importance
and imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would be lost not
only for the present generation, but also for those to come generations which
stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. During the debates on this right in one of
the plenary sessions of the 1986 Constitutional Commission, the following exchange
transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo
Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions

against all forms of pollution air, water and noise
pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic)

environment necessarily carries with it the correlative
duty of not impairing the same and, therefore, sanctions
may be provided for impairment of environmental
balance. 12

The said right implies, among many other things, the judicious management and
conservation of the country's forests.
 Without such forests, the ecological or environmental balance would be
irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the
right to health, as well as the other related provisions of the Constitution
concerning the conservation, development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O.
No. 192, 14 Section 4 of which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary government agency
responsible for the conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and grazing lands,
mineral, resources, including those in reservation and watershed areas, and lands
of the public domain, as well as the licensing and regulation of all natural resources
as may be provided for by law in order to ensure equitable sharing of the benefits
derived therefrom for the welfare of the present and future generations of Filipinos."
Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. It is hereby declared the policy of the

State to ensure the sustainable use, development, management,
renewal, and conservation of the country's forest, mineral, land, off-
shore areas and other natural resources, including the protection and
enhancement of the quality of the environment, and equitable access of
the different segments of the population to the development and the
use of the country's natural resources, not only for the present
generation but for future generations as well. It is also the policy of the
state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization,
development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the

Administrative Code of 1987, 15specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for the
benefit of the Filipino people, the full exploration and development as
well as the judicious disposition, utilization, management, renewal and
 conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources, consistent with
the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural
resources equitably accessible to the different segments of the present
as well as future generations.

(2) The State shall likewise recognize and apply a true value system
that takes into account social and environmental cost implications
relative to the utilization, development and conservation of our natural
resources.

The above provision stresses "the necessity of maintaining a sound ecological

balance and protecting and enhancing the quality of the environment." Section 2 of
the same Title, on the other hand, specifically speaks of the mandate of the DENR;
however, it makes particular reference to the fact of the agency's being subject to
law and higher authority. Said section provides:

Sec. 2. Mandate. (1) The Department of Environment and Natural

Resources shall be primarily responsible for the implementation of the
foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of

carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and conservation
of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives
which will serve as the bases for policy formulation, and have defined the powers
and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the "environmental
right" of the present and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code)
were issued. The former "declared a continuing policy of the State (a) to create,
develop, maintain and improve conditions under which man and nature can thrive
in productive and enjoyable harmony with each other, (b) to fulfill the social,
economic and other requirements of present and future generations of Filipinos, and
(c) to insure the attainment of an environmental quality that is conducive to a life of
dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each
generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty under its mandate and by virtue
of its powers and functions under E.O. No. 192 and the Administrative Code of 1987
to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action. Petitioners
maintain that the granting of the TLAs, which they claim was done with grave
abuse of discretion, violated their right to a balanced and healthful ecology; hence,
the full protection thereof requires that no further TLAs should be renewed or
granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or

rights of the other; and its essential elements are legal right of the
plaintiff, correlative obligation of the defendant, and act or omission of
18
the defendant in violation of said legal right.

It is settled in this jurisdiction that in a motion to dismiss based on the ground that
19
the complaint fails to state a cause of action, the question submitted to the court
for resolution involves the sufficiency of the facts alleged in the complaint itself. No
other matter should be considered; furthermore, the truth of falsity of the said
allegations is beside the point for the truth thereof is deemed hypothetically
admitted. The only issue to be resolved in such a case is: admitting such alleged
facts to be true, may the court render a valid judgment in accordance with the
prayer in the complaint? 20 InMilitante vs. Edrosolano, 21 this Court laid down the
rule that the judiciary should "exercise the utmost care and circumspection in
passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and
deemed hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."

After careful examination of the petitioners' complaint, We find the statements

under the introductory affirmative allegations, as well as the specific averments
under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima
facie, the claimed violation of their rights. On the basis thereof, they may thus be
granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that
insofar as the cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question.
Policy formulation or determination by the executive or legislative branches of
Government is not squarely put in issue. What is principally involved is the
enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine
is no longer, the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the
Constitution states that:

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

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice
Isagani A. Cruz, a distinguished member of this Court, says:
 The first part of the authority represents the traditional concept of
judicial power, involving the settlement of conflicting rights as
conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review
what was before forbidden territory, to wit, the discretion of the
political departments of the government.

As worded, the new provision vests in the judiciary, and particularly

the Supreme Court, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse
of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to assume
that the issue presented before us was political in nature, we would
still not be precluded from revolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even the political
question. Article VII, Section 1, of the Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-
impairment of contracts clause found in the Constitution. The court a quo declared
that:

The Court is likewise of the impression that it cannot, no matter how

we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements. For to do
otherwise would amount to "impairment of contracts" abhored (sic) by
the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such
a sweeping pronouncement. In the first place, the respondent Secretary did not, for
obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If
he had done so, he would have acted with utmost infidelity to the Government by
providing undue and unwarranted benefits and advantages to the timber license
holders because he would have forever bound the Government to strictly respect the
said licenses according to their terms and conditions regardless of changes in policy
and the demands of public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must be read Section 20 of
the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the

President may amend, modify, replace or rescind any contract,
concession, permit, licenses or any other form of privilege granted
herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive

action. It is not a contract, property or a property right protested by the due
process clause of the Constitution. In Tan vs. Director of Forestry, 25 this
Court held:

. . . A timber license is an instrument by which the State regulates the

utilization and disposition of forest resources to the end that public
welfare is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by public interest or
public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be

unlawful, and is not a contract between the authority, federal, state, or
municipal, granting it and the person to whom it is granted; neither is
it property or a property right, nor does it create a vested right; nor is
it taxation (37 C.J. 168). Thus, this Court held that the granting of
license does not create irrevocable rights, neither is it property or
property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy
Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal

instruments by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence a
privilege granted by the State to qualified entities, and do not vest in
the latter a permanent or irrevocable right to the particular concession
area and the forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed contracts within the
purview of the due process of law clause [See Sections 3(ee) and 20 of
Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry,
G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

27
Sec. 10. No law impairing, the obligation of contracts shall be passed.

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the
instant case does not involve a law or even an executive issuance declaring the
cancellation or modification of existing timber licenses. Hence, the non-impairment
clause cannot as yet be invoked. Nevertheless, granting further that a law has
actually been passed mandating cancellations or modifications, the same cannot still
be stigmatized as a violation of the non-impairment clause. This is because by its
very nature and purpose, such as law could have only been passed in the exercise of
the police power of the state for the purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health and enhancing the general
welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
 The freedom of contract, under our system of government, is not meant
to be absolute. The same is understood to be subject to reasonable
legislative regulation aimed at the promotion of public health, moral,
safety and welfare. In other words, the constitutional guaranty of non-
impairment of obligations of contract is limited by the exercise of the
police power of the State, in the interest of public health, safety, moral
and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of
contracts are normally matters of private and not of public concern.
The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private
right is that of the public to regulate it in the common interest.

31
In short, the non-impairment clause must yield to the police power of the state.

Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent Secretary
from receiving, accepting, processing, renewing or approving new timber licenses
for, save in cases of renewal, no contract would have as of yet existed in the other
instances. Moreover, with respect to renewal, the holder is not entitled to it as a
matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby

GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore
amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.
No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and
Quiason, JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J.,
in this case which, to my mind, is one of the most important cases decided by this
Court in the last few years. The seminal principles laid down in this decision are
likely to influence profoundly the direction and course of the protection and
management of the environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to
sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus
standi is not a function of petitioners' claim that their suit is properly regarded as
a class suit. I understand locus standi to refer to the legal interest which a plaintiff
must have in the subject matter of the suit. Because of the very broadness of the
concept of "class" here involved membership in this "class" appears to
embrace everyone living in the country whether now or in the
future it appears to me that everyone who may be expected to benefit from the
course of action petitioners seek to require public respondents to take, is vested with
the necessary locus standi. The Court may be seen therefore to be recognizing
a beneficiaries' right of action in the field of environmental protection, as against
both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or
whether some failure to act, in the first instance, on the part of the governmental
agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an
appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one
specific fundamental legal right the right to a balanced and healthful ecology"
(Decision, p. 14). There is no question that "the right to a balanced and healthful
ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But
although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language.
It is in fact very difficult to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and healthful ecology." The list
of particular claims which can be subsumed under this rubic appears to be entirely
open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw
sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on open land,
streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and
other living sea resources through the use of dynamite or cyanide and other
chemicals; contamination of ground water resources; loss of certain species of fauna
and flora; and so on. The other statements pointed out by the Court: Section 3,
Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be
formulations of policy, as general and abstract as the constitutional statements of
basic policy in Article II, Section 16 ("the right to a balanced and healthful
ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code,"
is, upon the other hand, a compendious collection of more "specific environment
management policies" and "environment quality standards" (fourth "Whereas"
clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor
the Court has identified the particular provision or provisions (if any) of the
Philippine Environment Code which give rise to a specific legal right which
petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of
the headings and sub-headings mentioned above. The Philippine Environment Code
does not, in other words, appear to contemplate action on the part of private
persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal
right comprised in the constitutional statements above noted, the Court is in effect
saying that Section 15 (and Section 16) of Article II of the Constitution are self-
executing and judicially enforceable even in their present form. The implications of
this doctrine will have to be explored in future cases; those implications are too
large and far-reaching in nature even to be hinted at here.

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

It seems to me important that the legal right which is an essential component of a

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

The second is a broader-gauge consideration where a specific violation of law or

applicable regulation is not alleged or proved, petitioners can be expected to fall
back on the expanded conception of judicial power in the second paragraph of
Section 1 of Article VIII of the Constitution which reads:

Section 1. . . .

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

When substantive standards as general as "the right to a balanced and

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

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should
cancel, must be impleaded in the proceedings below. It might be asked that, if
petitioners' entitlement to the relief demanded is not dependent upon proof of
breach by the timber companies of one or more of the specific terms and conditions
of their concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to
dispute the existence of the specific legal right petitioners should allege, as well as
the reality of the claimed factual nexus between petitioners' specific legal rights and
the claimed wrongful acts or failures to act of public respondent administrative
agency. They may also controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment,
including the forest cover of our territory, is of extreme importance for the country.
The doctrines set out in the Court's decision issued today should, however, be
subjected to closer examination.
# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J.,
in this case which, to my mind, is one of the most important cases decided by this
Court in the last few years. The seminal principles laid down in this decision are
likely to influence profoundly the direction and course of the protection and
management of the environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to
sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus
standi is not a function of petitioners' claim that their suit is properly regarded as
a class suit. I understand locus standi to refer to the legal interest which a plaintiff
must have in the subject matter of the suit. Because of the very broadness of the
concept of "class" here involved membership in this "class" appears to
embrace everyone living in the country whether now or in the
future it appears to me that everyone who may be expected to benefit from the
course of action petitioners seek to require public respondents to take, is vested with
the necessary locus standi. The Court may be seen therefore to be recognizing
a beneficiaries' right of action in the field of environmental protection, as against
both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or
whether some failure to act, in the first instance, on the part of the governmental
agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an
appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one
specific fundamental legal right the right to a balanced and healthful ecology"
(Decision, p. 14). There is no question that "the right to a balanced and healthful
ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But
although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language.
It is in fact very difficult to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and healthful ecology." The list
of particular claims which can be subsumed under this rubic appears to be entirely
open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw
sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on open land,
streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and
other living sea resources through the use of dynamite or cyanide and other
chemicals; contamination of ground water resources; loss of certain species of fauna
and flora; and so on. The other statements pointed out by the Court: Section 3,
Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be
formulations of policy, as general and abstract as the constitutional statements of
basic policy in Article II, Section 16 ("the right to a balanced and healthful
ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code,"
is, upon the other hand, a compendious collection of more "specific environment
management policies" and "environment quality standards" (fourth "Whereas"
clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

 (d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor
the Court has identified the particular provision or provisions (if any) of the
Philippine Environment Code which give rise to a specific legal right which
petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of
the headings and sub-headings mentioned above. The Philippine Environment Code
does not, in other words, appear to contemplate action on the part of private
persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal

right comprised in the constitutional statements above noted, the Court is in effect
saying that Section 15 (and Section 16) of Article II of the Constitution are self-
executing and judicially enforceable even in their present form. The implications of
this doctrine will have to be explored in future cases; those implications are too
large and far-reaching in nature even to be hinted at here.

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

It seems to me important that the legal right which is an essential component of a

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

The second is a broader-gauge consideration where a specific violation of law or

applicable regulation is not alleged or proved, petitioners can be expected to fall
back on the expanded conception of judicial power in the second paragraph of
Section 1 of Article VIII of the Constitution which reads:

Section 1. . . .

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

When substantive standards as general as "the right to a balanced and

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

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should
cancel, must be impleaded in the proceedings below. It might be asked that, if
petitioners' entitlement to the relief demanded is not dependent upon proof of
breach by the timber companies of one or more of the specific terms and conditions
of their concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to
dispute the existence of the specific legal right petitioners should allege, as well as
the reality of the claimed factual nexus between petitioners' specific legal rights and
the claimed wrongful acts or failures to act of public respondent administrative
agency. They may also controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment,
including the forest cover of our territory, is of extreme importance for the country.
The doctrines set out in the Court's decision issued today should, however, be
subjected to closer examination.

EN BANC

[G.R. No. 148560. November 19, 2001]

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third

Division) and PEOPLE OF THE PHILIPPINES, respondents.

DECISION
BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his
pen in defense of the rights of the individual from the vast powers of the State and
the inroads of societal pressure. But even as he draws a sacrosanct line demarcating
the limits on individuality beyond which the State cannot tread - asserting that
"individual spontaneity" must be allowed to flourish with very little regard to social
interference - he veritably acknowledges that the exercise of rights and liberties is
imbued with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in

interfering with the liberty of action of any of their number, is self-protection. The
only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to
self-preservation. With the end of maintaining the integrity and cohesiveness of the
body politic, it behooves the State to formulate a system of laws that would compel
obeisance to its collective wisdom and inflict punishment for non-observance.

The movement from Mill's individual liberalism to unsystematic collectivism

wrought changes in the social order, carrying with it a new formulation of
fundamental rights and duties more attuned to the imperatives of contemporary
socio-political ideologies. In the process, the web of rights and State impositions
became tangled and obscured, enmeshed in threads of multiple shades and colors,
the skein irregular and broken. Antagonism, often outright collision, between the
law as the expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed. It is when
individual rights are pitted against State authority that judicial conscience is put to
its severest test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted

under RA 7080 (An Act Defining and Penalizing the Crime of Plunder),[1] as
amended by RA 7659,[2] wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct line which divides the
valid from the constitutionally infirm. He therefore makes a stringent call for this
Court to subject the Plunder Law to the crucible of constitutionality mainly because,
according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the
"reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the
element of mens rea in crimes already punishable under The Revised Penal Code, all
of which are purportedly clear violations of the fundamental rights of the accused to
due process and to be informed of the nature and cause of the accusation against
him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have

transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are
reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business,

enterprise or material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or series of the
following means or similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds

or raids on the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage,

kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the

National Government or any of its subdivisions, agencies or instrumentalities, or
government owned or controlled corporations and their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock,

equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;

(5) By establishing agricultural, industrial or commercial monopolies or other

combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by
himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of
overt or criminal acts as described in Section 1 (d) hereof, in the aggregate
amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty
of the crime of plunder and shall be punished by reclusion perpetua to death. Any
person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances as provided by the Revised Penal Code
shall be considered by the court. The court shall declare any and all ill-gotten wealth
and their interests and other incomes and assets including the properties and shares
of stocks derived from the deposit or investment thereof forfeited in favor of the State
(underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it

shall not be necessary to prove each and every criminal act done by the accused
in furtherance of the scheme or conspiracy to amass, accumulate or acquire
ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme
or conspiracy (underscoring supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan
eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation
of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive,
for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019
(Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards
for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183
of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An
Alias (CA No. 142, as amended by RA 6085).
 On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case
to the Ombudsman for preliminary investigation with respect to specification "d" of
the charges in the Information in Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under specifications
"a," "b," and "c" to give the accused an opportunity to file counter-affidavits and
other documents necessary to prove lack of probable cause. Noticeably, the grounds
raised were only lack of preliminary investigation, reconsideration/reinvestigation of
offenses, and opportunity to prove lack of probable cause. The purported ambiguity
of the charges and the vagueness of the law under which they are charged were
never raised in that Omnibus Motion thus indicating the explicitness and
comprehensibility of the Plunder Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in

Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER
exists to justify the issuance of warrants for the arrest of the accused." On 25 June
2001 petitioner's motion for reconsideration was denied by the Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information in Crim. Case No.
26558 on the ground that the facts alleged therein did not constitute an indictable
offense since the law on which it was based was unconstitutional for vagueness, and
that the Amended Information for Plunder charged more than one (1) offense. On 21
June 2001 the Government filed its Opposition to the Motion to Quash, and five (5)
days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9
July 2001 the Sandiganbayan denied petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18

September 2001, the issues for resolution in the instant petition for certiorari are:
(a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law
requires less evidence for proving the predicate crimes of plunder and therefore
violates the rights of the accused to due process; and, (c) Whether Plunder as
defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power
of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of

legislation is predicated on the basic principle that a legislative measure is
presumed to be in harmony with the Constitution. [3] Courts invariably train their
sights on this fundamental rule whenever a legislative act is under a constitutional
attack, for it is the postulate of constitutional adjudication. This strong predilection
for constitutionality takes its bearings on the idea that it is forbidden for one branch
of the government to encroach upon the duties and powers of another. Thus it has
been said that the presumption is based on the deference the judicial branch accords
to its coordinate branch - the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the
courts must assume that the legislature is ever conscious of the borders and edges of
its plenary powers, and has passed the law with full knowledge of the facts and for
the purpose of promoting what is right and advancing the welfare of the
majority. Hence in determining whether the acts of the legislature are in tune with
the fundamental law, courts should proceed with judicial restraint and act with
caution and forbearance. Every intendment of the law must be adjudged by the
courts in favor of its constitutionality, invalidity being a measure of last resort. In
construing therefore the provisions of a statute, courts must first ascertain whether
an interpretation is fairly possible to sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as

long as there is some basis for the decision of the court, the constitutionality of the
challenged law will not be touched and the case will be decided on other available
grounds. Yet the force of the presumption is not sufficient to catapult a
fundamentally deficient law into the safe environs of constitutionality. Of course,
where the law clearly and palpably transgresses the hallowed domain of the organic
law, it must be struck down on sight lest the positive commands of the fundamental
law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the
party challenging the validity of the statute. He must demonstrate beyond any tinge
of doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put
by Justice Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed
in the instant case to discharge his burden and overcome the presumption of
constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards and well-

defined parameters which would enable the accused to determine the nature of his
violation. Section 2 is sufficiently explicit inits description of the acts, conduct and
conditions required or forbidden, and prescribes the elements of the crime with
reasonable certainty and particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a

combination or series of the following overt or criminal acts: (a) through
misappropriation, conversion, misuse, or malversation of public funds or raids on
the public treasury; (b) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickback or any other form of pecuniary benefits from any person
and/or entity in connection with any government contract or project or by reason of
the office or position of the public officer; (c) by the illegal or fraudulent conveyance or
disposition of assets belonging to the NationalGovernment or any of its subdivisions,
agencies or instrumentalities of Government owned or controlled corporations or
their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or undertaking; (e) by
establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or (f) by taking advantage of official position,
authority, relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the Filipino people and
the Republic of the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least P50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform
those who are subject to it what conduct would render them liable to its penalties,
its validity will be sustained. It must sufficiently guide the judge in its application;
the counsel, in defending one charged with its violation; and more importantly, the
accused, in identifying the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute punishes is the act of
a public officer in amassing or accumulating ill-gotten wealth of at
least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1,
par. (d), of the Plunder Law.
 In fact, the amended Information itself closely tracks the language of the law,
indicating with reasonable certainty the various elements of the offense which
petitioner is alleged to have committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the

Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a.
'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang,
Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and
John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A.
No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO
ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR
OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal
acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES,

MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE
MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK
OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in
connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada,
Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in
considerationOF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating,

converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR
PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED
THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion
of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax
share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN
DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND
OTHER JOHN DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR
MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED
FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE
OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE
HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND
FIFTY CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR
RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF
STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION
SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS,
FROM THE BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,

PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as there is

obviously none - that will confuse petitioner in his defense. Although subject to
proof, these factual assertions clearly show that the elements of the crime are easily
understood and provide adequate contrast between the innocent and the prohibited
acts. Upon such unequivocal assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory
definition of the terms "combination" and "series" in the key phrase "a combination
or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the
word "pattern" in Sec. 4. These omissions, according to petitioner, render the
Plunder Law unconstitutional for being impermissibly vague and overbroad and
deny him the right to be informed of the nature and cause of the accusation against
him, hence, violative of his fundamental right to due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered

uncertain and void merely because general terms are used therein, or because of the
employment of terms without defining them;[6] much less do we have to define every
word we use. Besides, there is no positive constitutional or statutory command
requiring the legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so define the
words employed in a statute will not necessarily result in the vagueness or
ambiguity of the law so long as the legislative will is clear, or at least, can be
gathered from the whole act, which is distinctly expressed in the Plunder Law.
 Moreover, it is a well-settled principle of legal hermeneutics that words of a
statute will be interpreted in their natural, plain and ordinary acceptation and
signification,[7] unless it is evident that the legislature intended a technical or
special legal meaning to those words. [8] The intention of the lawmakers - who are,
ordinarily, untrained philologists and lexicographers - to use statutory phraseology
in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary
contains the following commonly accepted definition of the words
"combination" and "series:"

Combination - the result or product of combining; the act or process of

combining. To combine is to bring into such close relationship as to obscure
individual characters.

Series - a number of things or events of the same class coming one after another in
spatial and temporal succession.

That Congress intended the words "combination" and "series" to be understood

in their popular meanings is pristinely evident from the legislative deliberations on
the bill which eventually became RA 7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May

1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say

THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS
MENTIONED IN SECTION ONE HEREOF.Now when we say combination, we
actually mean to say, if there are two or more means, we mean to say that number
one and two or number one and something else are included, how about a series of
the same act? For example, through misappropriation, conversion, misuse, will these
be included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.

REP. GARCIA: Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

REP. GARCIA: Yes.

REP. ISIDRO: When we say combination, it seems that -

REP. GARCIA: Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated
means not twice of one enumeration.

REP. GARCIA: No, no, not twice.

REP. ISIDRO: Not twice?

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

REP. ISIDRO: So in other words, thats it. When we say combination, we mean,
two different acts. It cannot be a repetition of the same act.

REP. GARCIA: That be referred to series, yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

REP. GARCIA: A series.

REP. ISIDRO: Thats not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why,
I said, that is a very good suggestion because if it is only one act, it may fall
under ordinary crime but we have here a combination or series of overt or
criminal acts. So x x x x

REP. GARCIA: Series. One after the other eh di....

SEN. TANADA: So that would fall under the term series?

REP. GARCIA: Series, oo.

REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....

REP. GARCIA: Its not... Two misappropriations will not be combination. Series.

REP. ISIDRO: So, it is not a combination?

REP. GARCIA: Yes.

REP. ISIDRO: When you say combination, two different?

REP. GARCIA: Yes.

SEN. TANADA: Two different.

 REP. ISIDRO: Two different acts.

REP. GARCIA: For example, ha...

REP. ISIDRO: Now a series, meaning, repetition...

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

SENATOR MACEDA: In line with our interpellations that sometimes one or

maybe even two acts may already result in such
a big amount, on line 25, would the Sponsor consider deleting the words a
series of overt or, to read, therefore: or conspiracy COMMITTED by criminal
acts such as. Remove the idea of necessitating a series. Anyway, the criminal
acts are in the plural.

SENATOR TANADA: That would mean a combination of two or more of the acts
mentioned in this.

THE PRESIDENT: Probably two or more would be....

SENATOR MACEDA: Yes, because a series implies several or many; two or more.

SENATOR TANADA: Accepted, Mr. President x x x x

THE PRESIDENT: If there is only one, then he has to be prosecuted under the
particular crime. But when we say acts of plunder there should be, at least,
two or more.

SENATOR ROMULO: In other words, that is already covered by existing laws,

Mr. President.

Thus when the Plunder Law speaks of "combination," it is referring to at least

two (2) acts falling under different categories of enumeration provided in Sec. 1, par.
(d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent
conveyance of assets belonging to the National Government under Sec. 1, par. (d),
subpar. (3).

On the other hand, to constitute a series" there must be two (2) or more overt or
criminal acts falling under the same category of enumeration found in Sec. 1, par.
(d), say, misappropriation, malversation
and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar.
(1). Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in specifically
providing for it in the law.
 As for "pattern," we agree with the observations of the Sandiganbayan [9] that
this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or

series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1
(d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is
directed towards a common purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an
'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly
understood, the term 'overall unlawful scheme' indicates a 'general plan of action or
method' which the principal accused and public officer and others conniving with
him follow to achieve the aforesaid common goal. In the alternative, if there is no
such overall scheme or where the schemes or methods used by multiple accused vary,
the overt or criminal acts must form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the circumstances,
petitioner's reliance on the "void-for-vagueness" doctrine is manifestly
misplaced. The doctrine has been formulated in various ways, but is most commonly
stated to the effect that a statute establishing a criminal offense must define the
offense with sufficient definiteness that persons of ordinary intelligence can
understand what conduct is prohibited by the statute. It can only be invoked against
that specie of legislation that is utterly vague on its face, i.e., that which cannot be
clarified either by a saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards

that men of common intelligence must necessarily guess at its meaning and differ in
its application. In such instance, the statute is repugnant to the Constitution in two
(2) respects - it violates due process for failure to accord persons, especially the
parties targeted by it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle. [10] But the doctrine does not apply as
against legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of activities. The first
may be "saved" by proper construction, while no challenge may be mounted as
against the second whenever directed against such activities.[11] With more reason,
the doctrine cannot be invoked where the assailed statute is clear and free from
ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is

whether the language conveys a sufficiently definite warning as to the proscribed
conduct when measured by common understanding and practice. [12] It must be
stressed, however, that the "vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of the statute
are clearly delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions, especially where,
because of the nature of the act, it would be impossible to provide all the details in
advance as in all other statutes.

Moreover, we agree with, hence we adopt, the observations of Mr. Justice

Vicente V. Mendoza during the deliberations of the Court that the allegations that
the Plunder Law is vague and overbroad do not justify a facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application, violates the
first essential of due process of law."[13] The overbreadth doctrine, on the other hand,
decrees that "a governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."[14]

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." [15] The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of overly
broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been held
that "a facial challenge to a legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid." [18] As for the vagueness doctrine, it is said that
a litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others." [19]

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will
not be heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its application might
be unconstitutional."[20] As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant." [21] Consequently, there is no
basis for petitioner's claim that this Court review the Anti-Plunder Law on its face
and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely
on the ground that they might be applied to parties not before the Court whose
activities are constitutionally protected.[22] It constitutes a departure from the case
and controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts. [23] But, as the U.S.
Supreme Court pointed out in Younger v. Harris[24]

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and

requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary.The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-
line analysis of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.

For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last
resort,"[25] and is generally disfavored.[26] In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case
must be examined in the light of the conduct with which the defendant is charged. [27]

In light of the foregoing disquisition, it is evident that the purported ambiguity

of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is
more imagined than real. Ambiguity, where none exists, cannot be created by
dissecting parts and words in the statute to furnish support to critics who cavil at
the want of scientific precision in the law. Every provision of the law should be
construed in relation and with reference to every other part. To be sure, it will take
more than nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign
ignorance of what the Plunder Law is all about. Being one of the Senators who voted
for its passage, petitioner must be aware that the law was extensively deliberated
upon by the Senate and its appropriate committees by reason of which he even
registered his affirmative vote with full knowledge of its legal implications and
sound constitutional anchorage.

The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to

illustrate and emphasize the point that courts are loathed to declare a statute void
for uncertainty unless the law itself is so imperfect and deficient in its details, and
is susceptible of no reasonable construction that will support and give it effect. In
that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners
posited, among others, that the term "unwarranted" is highly imprecise and elastic
with no common law meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due
process in that it does not give fair warning or sufficient notice of what it seeks to
penalize.Petitioners further argued that the Information charged them with three
(3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest
partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c)
giving of "unwarranted" benefits through gross inexcusable negligence while in the
discharge of their official function and that their right to be informed of the nature
and cause of the accusation against them was violated because they were left to
guess which of the three (3) offenses, if not all, they were being charged and
prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Act does not suffer from the constitutional defect of
vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and
inexcusable negligence" merely describe the different modes by which the offense
penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all
these phrases in the same Information does not mean that the indictment charges
three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official

support; unjustified; unauthorized (Webster, Third International Dictionary, p.
2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v.
US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases,
Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a
corrupt practice and make unlawful the act of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference

in the discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e],
Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions
penalize is the act of a public officer, in the discharge of his official, administrative
or judicial functions, in giving any private party benefits, advantage or preference
which is unjustified, unauthorized or without justification or adequate reason,
through manifest partiality, evident bad faith or gross inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in
the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act, which was understood in its primary and general
acceptation. Consequently, in that case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4
of the Plunder Law circumvents the immutable obligation of the prosecution to
prove beyond reasonable doubt the predicate acts constituting the crime of plunder
when it requires only proof of a pattern of overt or criminal acts showing unlawful
scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall
not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a
criminal prosecution for plunder, as in all other crimes, the accused always has in
his favor the presumption of innocence which is guaranteed by the Bill of Rights,
and unless the State succeeds in demonstrating by proof beyond reasonable doubt
that culpability lies, the accused is entitled to an acquittal. [29] The use of
the"reasonable doubt" standard is indispensable to command the respect and
confidence of the community in the application of criminal law. It is critical that the
moral force of criminal law be not diluted by a standard of proof that leaves people
in doubt whether innocent men are being condemned. It is also important in our
free society that every individual going about his ordinary affairs has confidence
that his government cannot adjudge him guilty of a criminal offense without
convincing a proper factfinder of his guilt with utmost certainty. This "reasonable
doubt" standard has acquired such exalted stature in the realm of constitutional law
as it gives life to the Due Process Clause which protects the accused against
conviction except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged. [30] The following exchanges between
Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in
the floor of the House of Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9

October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that
what is alleged in the information must be proven beyond reasonable doubt. If
we will prove only one act and find him guilty of the other acts enumerated in
the information, does that not work against the right of the accused especially
so if the amount committed, say, by falsification is less than P100 million, but
the totality of the crime committed is P100 million since there is malversation,
bribery, falsification of public document, coercion, theft?

MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be
proved beyond reasonable doubt. What is required to be proved beyond
reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the
information three pairs of pants, pieces of jewelry. These need not be proved
beyond reasonable doubt, but these will not prevent the conviction of a crime
for which he was charged just because, say, instead of 3 pairs of diamond
earrings the prosecution proved two. Now, what is required to be proved
beyond reasonable doubt is the element of the offense.

MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime
of plunder the totality of the amount is very important, I feel that such a series
of overt criminal acts has to be taken singly. For instance, in the act of bribery,
he was able to accumulate only P50,000 and in the crime of extortion, he was
only able to accumulate P1 million. Now, when we add the totality of the other
acts as required under this bill through the interpretation on the rule of
evidence, it is just one single act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential
element of the crime, there is a need to prove that element beyond reasonable
doubt. For example, one essential element of the crime is that the amount
involved is P100 million. Now, in a series of defalcations and other acts of
corruption in the enumeration the total amount would be P110 or P120
 million, but there are certain acts that could not be proved, so, we will sum up
the amounts involved in those transactions which were proved. Now, if the
amount involved in these transactions, proved beyond reasonable doubt,
is P100 million, then there is a crime of plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner
refashion the standard quantum of proof in the crime of plunder. The burden still
remains with the prosecution to prove beyond any iota of doubt every fact or element
necessary to constitute the crime.

The thesis that Sec. 4 does away with proof of each and every component of the
crime suffers from a dismal misconception of the import of that provision. What the
prosecution needs to prove beyond reasonable doubt is only a number of acts
sufficient to form a combination or series which would constitute a pattern and
involving an amount of at least P50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been committed by the accused in
furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an
Information for plunder with having committed fifty (50) raids on the public
treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient
to prove by pattern at least two (2) of the raids beyond reasonable doubt provided
only that they amounted to at least P50,000,000.00.[31]

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion

that "pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden
wealth. Stated otherwise, such pattern arises where the prosecution is able to prove
beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is
merely a by-product of the proof of the predicate acts. This conclusion is consistent
with reason and common sense. There would be no other explanation for a
combination or series of

overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy
to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not
required to make a deliberate and conscious effort to prove pattern as it necessarily
follows with the establishment of a series or combination of the predicate acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his

submission that "pattern" is "a very important element of the crime of plunder;" and
that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive
element of the crime," such that without it the accused cannot be convicted of
plunder -

JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under

the Plunder Law without applying Section 4 on the Rule of Evidence if there is
proof beyond reasonable doubt of the commission of the acts complained of?

ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated

in the Revised Penal Code, but not plunder.

JUSTICE BELLOSILLO: In other words, if all the elements of the crime are
proved beyond reasonable doubt without applying Section 4, can you not have
a conviction under the Plunder Law?

ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in

convicting an accused charged for violation of the Plunder Law?

ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x

JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when

there is proof beyond reasonable doubt on the acts charged constituting
plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a
rule of evidence and it contains a substantive element of the crime of
plunder. So, there is no way by which we can avoid Section 4.

JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as

the predicate crimes charged are concerned that you do not have to go that far
by applying Section 4?

ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very
important element of the crime of plunder and that cannot be avoided by the
prosecution.[32]

We do not subscribe to petitioner's stand. Primarily, all the essential elements of

plunder can be culled and understood from its definition in Sec. 2, in relation to Sec.
1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening
clause of Sec. 4 is clear and unequivocal:
 SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder
xxxx

It purports to do no more than prescribe a rule of procedure for the prosecution

of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not
define or establish any substantive right in favor of the accused but only operates in
furtherance of a remedy. It is only a means to an end, an aid to substantive
law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had,
for what is crucial for the prosecution is to present sufficient evidence to engender
that moral certitude exacted by the fundamental law to prove the guilt of the
accused beyond reasonable doubt. Thus, even granting for the sake of argument that
Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be
severed from the rest of the provisions without necessarily resulting in the demise of
the law; after all, the existing rules on evidence can supplant Sec. 4 more than
enough. Besides, Sec. 7 of RA 7080 provides for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application

thereof to any person or circumstance
is held invalid, the remaining provisions of this Act and the application of such
provisions to other persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions, assuming that to
be the case although it is not really so, all the provisions thereof should accordingly
be treated independently of each other, especially if by doing so, the objectives of the
statute can best be achieved.

As regards the third issue, again we agree with Justice Mendoza that plunder is
a malum in se which requires proof of criminal intent. Thus, he says, in his
Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens
rea must be proven in a prosecution for plunder. It is noteworthy that the amended
information alleges that the crime of plunder was committed "willfully, unlawfully
and criminally." It thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement of mens
rea and that is the reason he claims the statute is void, petitioner cites the following
remarks of Senator Taada made during the deliberation on S.B. No. 733:

SENATOR TAADA . . . And the evidence that will be required to convict him would
not be evidence for each and every individual criminal act but only evidence
sufficient to establish the conspiracy or scheme to commit this crime of plunder. [33]

However, Senator Taada was discussing 4 as shown by the succeeding portion of the
transcript quoted by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained
in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a
speedier and faster process of attending to this kind of cases?

SENATOR TAADA: Yes, Mr. President . . .[34]

Senator Taada was only saying that where the charge is conspiracy to commit
plunder, the prosecution need not prove each and every criminal act done to further
the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a
pattern of overt or ciminal acts indicative of the overall unlawful scheme or
conspiracy. As far as the acts constituting the pattern are concerned, however, the
elements of the crime must be proved and the requisite mens rea must be shown.

Indeed, 2 provides that -

Any person who participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal

Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens
rea is an element of plunder since the degree of responsibility of the offender is
determined by his criminal intent. It is true that 2 refers to "any person who
participates with the said public officer in the commission of an offense contributing
to the crime of plunder." There is no reason to believe, however, that it does not
apply as well to the public officer as principal in the crime. As Justice Holmes
said: "We agree to all the generalities about not supplying criminal laws with what
they omit, but there is no canon against using common sense in construing laws as
saying what they obviously mean."[35]

Finally, any doubt as to whether the crime of plunder is a malum in se must be

deemed to have been resolved in the affirmative by the decision of Congress in 1993
to include it among the heinous crimes punishable by reclusion perpetua to
death. Other heinous crimes are punished with death as a straight penalty in R.A.
No. 7659. Referring to these groups of heinous crimes, this Court held in People v.
Echegaray:[36]

The evil of a crime may take various forms. There are crimes that are, by their very
nature, despicable, either because life was callously taken or the victim is treated
like an animal and utterly dehumanized as to completely disrupt the normal course
of his or her growth as a human being . . . . Seen in this light, the capital crimes of
kidnapping and serious illegal detention for ransom resulting in the death of the
victim or the victim is raped, tortured, or subjected to dehumanizing acts;
destructive arson resulting in death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention, where the victim is
detained for more than three days or serious physical injuries were inflicted on the
victim or threats to kill him were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive arson, and carnapping where
the owner, driver or occupant of the carnapped vehicle is killed or raped, which are
penalized by reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and
implications of the subject criminal acts in the scheme of the larger socio-political
and economic context in which the state finds itself to be struggling to develop and
provide for its poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the population,
the Philippine Government must muster the political will to dismantle the culture
of corruption, dishonesty, greed and syndicated criminality that so deeply
entrenched itself in the structures of society and the psyche of the populace. [With
the government] terribly lacking the money to provide even the most basic services
to its people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the
very survival of the people it governs over. Viewed in this context, no less heinous
are the effects and repercussions of crimes like qualified bribery, destructive arson
resulting in death, and drug offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to cause further destruction and
damage to society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense
implies that it is a malum in se. For when the acts punished are inherently immoral
or inherently wrong, they are mala in se[37]and it does not matter that such acts are
punished in a special law, especially since in the case of plunder the predicate
crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for
plunder as though they are mere prosecutions for violations of the Bouncing Check
Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the
inherent wrongness of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory

law of RA 7080, on constitutional grounds. Suffice it to say however that it is now
too late in the day for him to resurrect thislong dead issue, the same having been
eternally consigned by People v. Echegaray[38] to the archives of jurisprudential
history. The declaration of this Court therein that RA 7659 is constitutionally valid
stands as a declaration of the State, and becomes, by necessary effect, assimilated in
the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of
officials in high places which have shaken its very foundation. The anatomy of graft
and corruption has become more elaborate in the corridors of time as unscrupulous
people relentlessly contrive more and more ingenious ways to bilk the coffers of the
government. Drastic and radical measures are imperative to fight the increasingly
sophisticated, extraordinarily methodical and
economically catastrophic looting of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale corruption
which, if left unchecked, will spread like a malignant tumor and ultimately consume
the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living
testament to the will of the legislature to ultimately eradicate this scourge and thus
secure society against the avarice and other venalities in public office.
 These are times that try men's souls. In the checkered history of this nation, few
issues of national importance can equal the amount of interest and passion
generated by petitioner's ignominious fall from the highest office, and his eventual
prosecution and trial under a virginal statute. This continuing
saga has driven a wedge of dissension among our people that may linger for a long
time. Only by responding to the clarion call for patriotism, to rise above factionalism
and prejudices, shall we emerge triumphant in the midst of ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known

as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently,
the petition to declare the law unconstitutional is DISMISSED for lack of merit.

SO ORDERED.

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

Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting
opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.

EN BANC

PROF. MERLIN M. MAGALLONA, G.R No. 187167

AKBAYAN PARTY-LIST REP. RISA

HONTIVEROS, PROF. HARRY C. Present:

ROQUE, JR., AND UNIVERSITY OF

THE PHILIPPINES COLLEGE OF CORONA, C.J.,

LAW STUDENTS, ALITHEA CARPIO,

BARBARA ACAS, VOLTAIRE VELASCO, JR.,

ALFERES, CZARINA MAY LEONARDO-DE CASTRO,

ALTEZ, FRANCIS ALVIN ASILO, BRION,

SHERYL BALOT, RUBY AMOR PERALTA,

BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,

ROMINA BERNARDO, VALERIE DEL CASTILLO,

PAGASA BUENAVENTURA, EDAN ABAD,

MARRI CAETE, VANN ALLEN VILLARAMA, JR.,

DELA CRUZ, RENE DELORINO, PEREZ,

PAULYN MAY DUMAN, SHARON MENDOZA, and

ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.

GIRLIE FERRER, RAOULLE OSEN

FERRER, CARLA REGINA GREPO,

ANNA MARIE CECILIA GO, IRISH

KAY KALAW, MARY ANN JOY LEE,

MARIA LUISA MANALAYSAY,

MIGUEL RAFAEL MUSNGI,

MICHAEL OCAMPO, JAKLYN HANNA

PINEDA, WILLIAM RAGAMAT,

MARICAR RAMOS, ENRIK FORT

REVILLAS, JAMES MARK TERRY

RIDON, JOHANN FRANTZ RIVERA IV,

CHRISTIAN RIVERO, DIANNE MARIE

ROA, NICHOLAS SANTIZO, MELISSA

CHRISTINA SANTOS, CRISTINE MAE

TABING, VANESSA ANNE TORNO,

MARIA ESTER VANGUARDIA, and

MARCELINO VELOSO III,

Petitioners,

- versus -

HON. EDUARDO ERMITA, IN HIS

CAPACITY AS EXECUTIVE

SECRETARY, HON. ALBERTO

ROMULO, IN HIS CAPACITY AS

SECRETARY OF THE DEPARTMENT

OF FOREIGN AFFAIRS, HON.

ROLANDO ANDAYA, IN HIS CAPACITY

AS SECRETARY OF THE DEPARTMENT

OF BUDGET AND MANAGEMENT,

HON. DIONY VENTURA, IN HIS

CAPACITY AS ADMINISTRATOR OF

THE NATIONAL MAPPING &

RESOURCE INFORMATION

AUTHORITY, and HON. HILARIO

DAVIDE, JR., IN HIS CAPACITY AS

REPRESENTATIVE OF THE

PERMANENT MISSION OF THE

REPUBLIC OF THE PHILIPPINES Promulgated:

TO THE UNITED NATIONS,

Respondents. July 16, 2011

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

DECISION

CARPIO, J.:
The Case

This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 9522 1 (RA 9522) adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046) 2 demarcating the
maritime baselines of the Philippines as an archipelagic State. 3 This law followed
the framing of the Convention on the Territorial Sea and the Contiguous Zone in
1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties
over their territorial sea, the breadth of which, however, was left undetermined.
Attempts to fill this void during the second round of negotiations in Geneva in 1960
(UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for
nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of baselines
around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III),5 which the Philippines ratified on 27 February 1984. 6 Among others, UNCLOS
III prescribes the water-land ratio, length, and contour of baselines of archipelagic
States like the Philippines7 and sets the deadline for the filing of application for the
extended continental shelf.8 Complying with these requirements, RA 9522
shortened one baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories, namely, the Kalayaan
Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands
generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective

capacities as citizens, taxpayers or x x x legislators, 9 as the case may be, assail the
constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the Philippine states
sovereign power, in violation of Article 1 of the 1987 Constitution, 10 embodying the
terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the
countrys waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening
the countrys nuclear-free policy, and damaging marine resources, in violation of
relevant constitutional provisions.13

In addition, petitioners contend that RA 9522s treatment of the KIG as

regime of islands not only results in the loss of a large maritime area but also
prejudices the livelihood of subsistence fishermen. 14 To buttress their argument of
territorial diminution, petitioners facially attack RA 9522 for what it excluded and
included its failure to reference either the Treaty of Paris or Sabah and its use of
UNCLOS IIIs framework of regime of islands to determine the maritime zones of
the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues

questioning (1) the petitions compliance with the case or controversy requirement
for judicial review grounded on petitioners alleged lack of locus standi and (2) the
propriety of the writs of certiorari and prohibition to assail the constitutionality of
RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance
with the terms of UNCLOS III, preserving Philippine territory over the KIG or
Scarborough Shoal. Respondents add that RA 9522 does not undermine the
countrys security, environment and economic interests or relinquish the Philippines
claim over Sabah.
 Respondents also question the normative force, under international law, of
petitioners assertion that what Spain ceded to the United States under the Treaty
of Paris were the islands and all the waters found within the boundaries of the
rectangular area drawn under the Treaty of Paris.

We left unacted petitioners prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to
assail the constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring
this suit as citizens and (2) the writs of certiorari and prohibition are proper
remedies to test the constitutionality of RA 9522. On the merits, we find no basis to
declare RA 9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus

Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and

taxpayers because the petition alleges neither infringement of legislative
prerogative15 nor misuse of public funds, 16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably
difficult to find other litigants possessing a more direct and specific interest to bring
the suit, thus satisfying one of the requirements for granting citizenship standing. 17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test

the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents
seek a strict observance of the offices of the writs of certiorari and prohibition,
noting that the writs cannot issue absent any showing of grave abuse of discretion in
the exercise of judicial, quasi-judicial or ministerial powers on the part of
respondents and resulting prejudice on the part of petitioners.18

Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry
such relevance in the life of this nation that the Court inevitably finds itself
constrained to take cognizance of the case and pass upon the issues raised, non-
compliance with the letter of procedural rules notwithstanding. The statute sought
to be reviewed here is one such law.

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool

to Demarcate the Countrys

Maritime Zones and Continental

Shelf Under UNCLOS III, not to

Delineate Philippine Territory

Petitioners submit that RA 9522 dismembers a large portion of the national
territory21 because it discards the pre-UNCLOS III demarcation of Philippine
territory under the Treaty of Paris and related treaties, successively encoded in the
definition of national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign control over waters, beyond
the territorial sea recognized at the time of the Treaty of Paris, that Spain
supposedly ceded to the United States. Petitioners argue that from the Treaty of
Paris technical description, Philippine sovereignty over territorial waters extends
hundreds of nautical miles around the Philippine archipelago, embracing the
rectangular area delineated in the Treaty of Paris.22

Petitioners theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is
a multilateral treaty regulating, among others, sea-use rights over maritime zones
(i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone
[24 nautical miles from the baselines], exclusive economic zone [200 nautical miles
from the baselines]), and continental shelves that UNCLOS III delimits. 23 UNCLOS
III was the culmination of decades-long negotiations among United Nations
members to codify norms regulating the conduct of States in the worlds oceans and
submarine areas, recognizing coastal and archipelagic States graduated authority
over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS
III States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic starting
points to measure the breadth of the maritime zones and continental shelf. Article
48 of UNCLOS III on archipelagic States like ours could not be any clearer:
 Article 48. Measurement of the breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf.
The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47.
(Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within which
States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration,
and sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).

Even under petitioners theory that the Philippine territory embraces the
islands and all the waters within the rectangular area delimited in the Treaty of
Paris, the baselines of the Philippines would still have to be drawn in accordance
with RA 9522 because this is the only way to draw the baselines in conformity with
UNCLOS III. The baselines cannot be drawn from the boundaries or other portions
of the rectangular area delineated in the Treaty of Paris, but from the outermost
islands and drying reefs of the archipelago.24

UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with the
treatys terms to delimit maritime zones and continental shelves. Territorial claims
to land features are outside UNCLOS III, and are instead governed by the rules on
general international law.26

RA 9522s Use of the Framework

of Regime of Islands to Determine the

Maritime Zones of the KIG and the

Scarborough Shoal, not Inconsistent

with the Philippines Claim of Sovereignty

Over these Areas

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that
area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the
Philippine archipelagic baselines results in the loss of about 15,000 square nautical
miles of territorial waters, prejudicing the livelihood of subsistence fishermen. 28 A
comparison of the configuration of the baselines drawn under RA 3046 and RA 9522
and the extent of maritime space encompassed by each law, coupled with a reading
of the text of RA 9522 and its congressional deliberations, vis--vis the Philippines
obligations under UNCLOS III, belie this view.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that
RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust
the length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners
argument branding RA 9522 as a statutory renunciation of the Philippines claim
over the KIG, assuming that baselines are relevant for this purpose.

Petitioners assertion of loss of about 15,000 square nautical miles of territorial

waters under RA 9522 is similarly unfounded both in fact and law. On the contrary,
RA 9522, by optimizing the location of basepoints, increased the Philippines total
maritime space (covering its internal waters, territorial sea and exclusive economic
zone) by 145,216 square nautical miles, as shown in the table below: 29

Extent of maritime Extent of

area using RA 3046, as maritime area
amended, taking into using RA 9522,
account the Treaty of taking into
Paris delimitation (in account
square nautical miles) UNCLOS III (in
square nautical
miles)

Internal or
archipelagic
waters 166,858 171,435

Territorial 274,136 32,106

Sea

Exclusive
Economic
 Zone 382,669

TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn
under RA 9522 even extends way beyond the waters covered by the rectangular
demarcation under the Treaty of Paris. Of course, where there are overlapping
exclusive economic zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA
9522 itself. Section 2 of the law commits to text the Philippines continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the

Philippines likewise exercises sovereignty and
 jurisdiction shall be determined as Regime of Islands under the
Republic of the Philippines consistent with Article 121 of the United
Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis

supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as
part of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall
not exceed 100 nautical miles, save for three per cent (3%) of the total number of
baselines which can reach up to 125 nautical miles. 31

Although the Philippines has consistently claimed sovereignty over the

32
KIG and the Scarborough Shoal for several decades, these outlying areas are
located at an appreciable distance from the nearest shoreline of the Philippine
archipelago,33 such that any straight baseline loped around them from the nearest
basepoint will inevitably depart to an appreciable extent from the general
configuration of the archipelago.

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-

Santiago, took pains to emphasize the foregoing during the Senate deliberations:
 What we call the Kalayaan Island Group or what the rest of the
world call[] the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which
states: The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago. So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our
own.

This is called contested islands outside our configuration. We see that

our archipelago is defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon
sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba,
that is Kalayaan Group or the Spratlys. Malayo na sila sa ating
archipelago kaya kung ilihis pa natin ang dating archipelagic baselines
para lamang masama itong dalawang circles, hindi na sila magkalapit
at baka hindi na tatanggapin ng United Nations because of the rule
that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
IIIs limits. The need to shorten this baseline, and in addition, to optimize the
location of basepoints using current maps, became imperative as discussed by
respondents:

[T]he amendment of the baselines law was necessary to enable

the Philippines to draw the outer limits of its maritime zones including
the extended continental shelf in the manner provided by Article 47 of
 [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds
the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and
not established by geodetic survey methods. Accordingly, some of the
points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on low-
water line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough
Shoal as Regime[s] of Islands under the Republic of the Philippines consistent with
Article 12136 of UNCLOS III manifests the Philippine States responsible observance
of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of
UNCLOS III, any naturally formed area of land, surrounded by water, which is
above water at high tide, such as portions of the KIG, qualifies under the category of
regime of islands, whose islands generate their own applicable maritime zones. 37
Statutory Claim Over Sabah under

RA 5446 Retained

Petitioners argument for the invalidity of RA 9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA
5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines
of Sabah:

Section 2. The definition of the baselines of the territorial sea of

the Philippine Archipelago as provided in this Act is without
prejudice to the delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has acquired
dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not

Incompatible with the Constitutions

Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under
UNCLOS III, including overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and maritime pollution
hazards, in violation of the Constitution.38

Whether referred to as Philippine internal waters under Article I of the

Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]), the
Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space

over archipelagic waters and of their bed and subsoil.

1. The sovereignty of an archipelagic State extends to

the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described
as archipelagic waters, regardless of their depth or
distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx

4. The regime of archipelagic sea lanes passage established in

this Part shall not in other respects affect the status of the
archipelagic waters, including the sea lanes, or the exercise by
the archipelagic State of its sovereignty over such waters and
 their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle
of freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent
and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes
passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified

in UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary international
law,43 thus automatically incorporated in the corpus of Philippine law. 44 No modern
State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking
retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage 45 does not place them in
lesser footing vis--vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through
archipelagic waters under UNCLOS III was a concession by archipelagic States, in
exchange for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from the coast, as archipelagic waters
subject to their territorial sovereignty. More importantly, the recognition of
archipelagic States archipelago and the waters enclosed by their baselines as one
cohesive entity prevents the treatment of their islands as separate islands under
UNCLOS III.46 Separate islands generate their own maritime zones, placing the
waters between islands separated by more than 24 nautical miles beyond the States
territorial sovereignty, subjecting these waters to the rights of other States under
UNCLOS III.47

Petitioners invocation of non-executory constitutional provisions in Article II

(Declaration of Principles and State Policies) 48 must also fail. Our present state of
jurisprudence considers the provisions in Article II as mere legislative guides,
which, absent enabling legislation, do not embody judicially enforceable
constitutional rights x x x.49 Article II provisions serve as guides in formulating and
interpreting implementing legislation, as well as in interpreting executory
provisions of the Constitution. Although Oposa v. Factoran50treated the right to a
healthful and balanced ecology under Section 16 of Article II as an exception, the
present petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the protection of marine
wealth (Article XII, Section 2, paragraph 2 51) and subsistence fishermen (Article
XIII, Section 752), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a maritime delineation binds
the international community since the delineation is in strict observance of
UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines.
UNCLOS III creates a sui generis maritime space the exclusive economic zone in
waters previously part of the high seas. UNCLOS III grants new rights to coastal
States to exclusively exploit the resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of
other States that attached to this zone beyond the territorial sea before UNCLOS
III.

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522. 54 We have looked at the relevant provision
of UNCLOS III55 and we find petitioners reading plausible. Nevertheless, the
prerogative of choosing this option belongs to Congress, not to this Court. Moreover,
the luxury of choosing this option comes at a very steep price. Absent an UNCLOS
III compliant baselines law, an archipelagic State like the Philippines will find itself
devoid of internationally acceptable baselines from where the breadth of its
maritime zones and continental shelf is measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to the seafaring powers to freely enter and
exploit the resources in the waters and submarine areas around our archipelago;
and second, it weakens the countrys case in any international dispute over
Philippine maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-
recognized delimitation of the breadth of the Philippines maritime zones and
continental shelf. RA 9522 is therefore a most vital step on the part of the
Philippines in safeguarding its maritime zones, consistent with the Constitution
and our national interest.

WHEREFORE, we DISMISS the petition.

 SO ORDERED.

EN BANC

PROF. MERLIN M. MAGALLONA, G.R No. 187167

AKBAYAN PARTY-LIST REP. RISA

HONTIVEROS, PROF. HARRY C. Present:

ROQUE, JR., AND UNIVERSITY OF

THE PHILIPPINES COLLEGE OF CORONA, C.J.,

LAW STUDENTS, ALITHEA CARPIO,

BARBARA ACAS, VOLTAIRE VELASCO, JR.,

ALFERES, CZARINA MAY LEONARDO-DE CASTRO,

ALTEZ, FRANCIS ALVIN ASILO, BRION,

SHERYL BALOT, RUBY AMOR PERALTA,

BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,

ROMINA BERNARDO, VALERIE DEL CASTILLO,

PAGASA BUENAVENTURA, EDAN ABAD,

MARRI CAETE, VANN ALLEN VILLARAMA, JR.,

DELA CRUZ, RENE DELORINO, PEREZ,

PAULYN MAY DUMAN, SHARON MENDOZA, and

ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.

GIRLIE FERRER, RAOULLE OSEN

FERRER, CARLA REGINA GREPO,

ANNA MARIE CECILIA GO, IRISH

KAY KALAW, MARY ANN JOY LEE,

MARIA LUISA MANALAYSAY,

MIGUEL RAFAEL MUSNGI,

MICHAEL OCAMPO, JAKLYN HANNA

PINEDA, WILLIAM RAGAMAT,

MARICAR RAMOS, ENRIK FORT

REVILLAS, JAMES MARK TERRY

RIDON, JOHANN FRANTZ RIVERA IV,

CHRISTIAN RIVERO, DIANNE MARIE

ROA, NICHOLAS SANTIZO, MELISSA

CHRISTINA SANTOS, CRISTINE MAE

TABING, VANESSA ANNE TORNO,

MARIA ESTER VANGUARDIA, and

MARCELINO VELOSO III,

Petitioners,
- versus -

HON. EDUARDO ERMITA, IN HIS

CAPACITY AS EXECUTIVE

SECRETARY, HON. ALBERTO

ROMULO, IN HIS CAPACITY AS

SECRETARY OF THE DEPARTMENT

OF FOREIGN AFFAIRS, HON.

ROLANDO ANDAYA, IN HIS CAPACITY

AS SECRETARY OF THE DEPARTMENT

OF BUDGET AND MANAGEMENT,

HON. DIONY VENTURA, IN HIS

CAPACITY AS ADMINISTRATOR OF

THE NATIONAL MAPPING &

RESOURCE INFORMATION

AUTHORITY, and HON. HILARIO

DAVIDE, JR., IN HIS CAPACITY AS

REPRESENTATIVE OF THE

PERMANENT MISSION OF THE

REPUBLIC OF THE PHILIPPINES Promulgated:

TO THE UNITED NATIONS,

Respondents. July 16, 2011

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

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 9522 1 (RA 9522) adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046) 2 demarcating the
maritime baselines of the Philippines as an archipelagic State. 3 This law followed
the framing of the Convention on the Territorial Sea and the Contiguous Zone in
1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties
over their territorial sea, the breadth of which, however, was left undetermined.
Attempts to fill this void during the second round of negotiations in Geneva in 1960
(UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for
nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of baselines
around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III),5 which the Philippines ratified on 27 February 1984. 6 Among others, UNCLOS
III prescribes the water-land ratio, length, and contour of baselines of archipelagic
States like the Philippines7 and sets the deadline for the filing of application for the
extended continental shelf.8 Complying with these requirements, RA 9522
shortened one baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories, namely, the Kalayaan
Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands
generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective

capacities as citizens, taxpayers or x x x legislators, 9 as the case may be, assail the
constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the Philippine states
sovereign power, in violation of Article 1 of the 1987 Constitution, 10 embodying the
terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the
countrys waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening
the countrys nuclear-free policy, and damaging marine resources, in violation of
relevant constitutional provisions.13
 In addition, petitioners contend that RA 9522s treatment of the KIG as
regime of islands not only results in the loss of a large maritime area but also
prejudices the livelihood of subsistence fishermen. 14 To buttress their argument of
territorial diminution, petitioners facially attack RA 9522 for what it excluded and
included its failure to reference either the Treaty of Paris or Sabah and its use of
UNCLOS IIIs framework of regime of islands to determine the maritime zones of
the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues

questioning (1) the petitions compliance with the case or controversy requirement
for judicial review grounded on petitioners alleged lack of locus standi and (2) the
propriety of the writs of certiorari and prohibition to assail the constitutionality of
RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance
with the terms of UNCLOS III, preserving Philippine territory over the KIG or
Scarborough Shoal. Respondents add that RA 9522 does not undermine the
countrys security, environment and economic interests or relinquish the Philippines
claim over Sabah.

Respondents also question the normative force, under international law, of

petitioners assertion that what Spain ceded to the United States under the Treaty
of Paris were the islands and all the waters found within the boundaries of the
rectangular area drawn under the Treaty of Paris.

We left unacted petitioners prayer for an injunctive writ.

The Issues

The petition raises the following issues:

 1. Preliminarily

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to
assail the constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring
this suit as citizens and (2) the writs of certiorari and prohibition are proper
remedies to test the constitutionality of RA 9522. On the merits, we find no basis to
declare RA 9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus

Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and

taxpayers because the petition alleges neither infringement of legislative
prerogative15 nor misuse of public funds, 16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably
difficult to find other litigants possessing a more direct and specific interest to bring
the suit, thus satisfying one of the requirements for granting citizenship standing. 17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test

the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents

seek a strict observance of the offices of the writs of certiorari and prohibition,
noting that the writs cannot issue absent any showing of grave abuse of discretion in
the exercise of judicial, quasi-judicial or ministerial powers on the part of
respondents and resulting prejudice on the part of petitioners.18

Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry
such relevance in the life of this nation that the Court inevitably finds itself
constrained to take cognizance of the case and pass upon the issues raised, non-
compliance with the letter of procedural rules notwithstanding. The statute sought
to be reviewed here is one such law.

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool

to Demarcate the Countrys

Maritime Zones and Continental

Shelf Under UNCLOS III, not to

Delineate Philippine Territory

Petitioners submit that RA 9522 dismembers a large portion of the national

territory21 because it discards the pre-UNCLOS III demarcation of Philippine
territory under the Treaty of Paris and related treaties, successively encoded in the
definition of national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign control over waters, beyond
the territorial sea recognized at the time of the Treaty of Paris, that Spain
supposedly ceded to the United States. Petitioners argue that from the Treaty of
Paris technical description, Philippine sovereignty over territorial waters extends
hundreds of nautical miles around the Philippine archipelago, embracing the
rectangular area delineated in the Treaty of Paris.22

Petitioners theory fails to persuade us.

 UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is
a multilateral treaty regulating, among others, sea-use rights over maritime zones
(i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone
[24 nautical miles from the baselines], exclusive economic zone [200 nautical miles
from the baselines]), and continental shelves that UNCLOS III delimits. 23 UNCLOS
III was the culmination of decades-long negotiations among United Nations
members to codify norms regulating the conduct of States in the worlds oceans and
submarine areas, recognizing coastal and archipelagic States graduated authority
over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS
III States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic starting
points to measure the breadth of the maritime zones and continental shelf. Article
48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the

contiguous zone, the exclusive economic zone and the continental shelf.
The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47.
(Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within which
States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration,
and sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
 Even under petitioners theory that the Philippine territory embraces the
islands and all the waters within the rectangular area delimited in the Treaty of
Paris, the baselines of the Philippines would still have to be drawn in accordance
with RA 9522 because this is the only way to draw the baselines in conformity with
UNCLOS III. The baselines cannot be drawn from the boundaries or other portions
of the rectangular area delineated in the Treaty of Paris, but from the outermost
islands and drying reefs of the archipelago.24

UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with the
treatys terms to delimit maritime zones and continental shelves. Territorial claims
to land features are outside UNCLOS III, and are instead governed by the rules on
general international law.26

RA 9522s Use of the Framework

of Regime of Islands to Determine the

Maritime Zones of the KIG and the

Scarborough Shoal, not Inconsistent

with the Philippines Claim of Sovereignty

Over these Areas

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that
area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the
Philippine archipelagic baselines results in the loss of about 15,000 square nautical
miles of territorial waters, prejudicing the livelihood of subsistence fishermen. 28 A
comparison of the configuration of the baselines drawn under RA 3046 and RA 9522
and the extent of maritime space encompassed by each law, coupled with a reading
of the text of RA 9522 and its congressional deliberations, vis--vis the Philippines
obligations under UNCLOS III, belie this view.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that
RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust
the length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners
argument branding RA 9522 as a statutory renunciation of the Philippines claim
over the KIG, assuming that baselines are relevant for this purpose.

Petitioners assertion of loss of about 15,000 square nautical miles of territorial

waters under RA 9522 is similarly unfounded both in fact and law. On the contrary,
RA 9522, by optimizing the location of basepoints, increased the Philippines total
maritime space (covering its internal waters, territorial sea and exclusive economic
zone) by 145,216 square nautical miles, as shown in the table below: 29

Extent of maritime Extent of

area using RA 3046, as maritime area
amended, taking into using RA 9522,
account the Treaty of taking into
Paris delimitation (in account
 square nautical miles) UNCLOS III (in
square nautical
miles)

Internal or
archipelagic
waters 166,858 171,435

Territorial 274,136 32,106

Sea

Exclusive
Economic
Zone 382,669

TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn
under RA 9522 even extends way beyond the waters covered by the rectangular
demarcation under the Treaty of Paris. Of course, where there are overlapping
exclusive economic zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA
9522 itself. Section 2 of the law commits to text the Philippines continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the

Philippines likewise exercises sovereignty and
 jurisdiction shall be determined as Regime of Islands under the
Republic of the Philippines consistent with Article 121 of the United
Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis

supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as
part of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall
not exceed 100 nautical miles, save for three per cent (3%) of the total number of
baselines which can reach up to 125 nautical miles. 31

Although the Philippines has consistently claimed sovereignty over the

32
KIG and the Scarborough Shoal for several decades, these outlying areas are
located at an appreciable distance from the nearest shoreline of the Philippine
archipelago,33 such that any straight baseline loped around them from the nearest
basepoint will inevitably depart to an appreciable extent from the general
configuration of the archipelago.

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-

Santiago, took pains to emphasize the foregoing during the Senate deliberations:
 What we call the Kalayaan Island Group or what the rest of the
world call[] the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which
states: The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago. So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our
own.

This is called contested islands outside our configuration. We see that

our archipelago is defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon
sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba,
that is Kalayaan Group or the Spratlys. Malayo na sila sa ating
archipelago kaya kung ilihis pa natin ang dating archipelagic baselines
para lamang masama itong dalawang circles, hindi na sila magkalapit
at baka hindi na tatanggapin ng United Nations because of the rule
that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
IIIs limits. The need to shorten this baseline, and in addition, to optimize the
location of basepoints using current maps, became imperative as discussed by
respondents:

[T]he amendment of the baselines law was necessary to enable

the Philippines to draw the outer limits of its maritime zones including
the extended continental shelf in the manner provided by Article 47 of
 [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds
the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and
not established by geodetic survey methods. Accordingly, some of the
points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on low-
water line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough
Shoal as Regime[s] of Islands under the Republic of the Philippines consistent with
Article 12136 of UNCLOS III manifests the Philippine States responsible observance
of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of
UNCLOS III, any naturally formed area of land, surrounded by water, which is
above water at high tide, such as portions of the KIG, qualifies under the category of
regime of islands, whose islands generate their own applicable maritime zones. 37
Statutory Claim Over Sabah under

RA 5446 Retained

Petitioners argument for the invalidity of RA 9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA
5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines
of Sabah:

Section 2. The definition of the baselines of the territorial sea of

the Philippine Archipelago as provided in this Act is without
prejudice to the delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has acquired
dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not

Incompatible with the Constitutions

Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under
UNCLOS III, including overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and maritime pollution
hazards, in violation of the Constitution.38

Whether referred to as Philippine internal waters under Article I of the

Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]), the
Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space

over archipelagic waters and of their bed and subsoil.

1. The sovereignty of an archipelagic State extends to

the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described
as archipelagic waters, regardless of their depth or
distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx

4. The regime of archipelagic sea lanes passage established in

this Part shall not in other respects affect the status of the
archipelagic waters, including the sea lanes, or the exercise by
the archipelagic State of its sovereignty over such waters and
 their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle
of freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent
and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes
passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified

in UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary international
law,43 thus automatically incorporated in the corpus of Philippine law. 44 No modern
State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking
retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage 45 does not place them in
lesser footing vis--vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through
archipelagic waters under UNCLOS III was a concession by archipelagic States, in
exchange for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from the coast, as archipelagic waters
subject to their territorial sovereignty. More importantly, the recognition of
archipelagic States archipelago and the waters enclosed by their baselines as one
cohesive entity prevents the treatment of their islands as separate islands under
UNCLOS III.46 Separate islands generate their own maritime zones, placing the
waters between islands separated by more than 24 nautical miles beyond the States
territorial sovereignty, subjecting these waters to the rights of other States under
UNCLOS III.47

Petitioners invocation of non-executory constitutional provisions in Article II

(Declaration of Principles and State Policies) 48 must also fail. Our present state of
jurisprudence considers the provisions in Article II as mere legislative guides,
which, absent enabling legislation, do not embody judicially enforceable
constitutional rights x x x.49 Article II provisions serve as guides in formulating and
interpreting implementing legislation, as well as in interpreting executory
provisions of the Constitution. Although Oposa v. Factoran50treated the right to a
healthful and balanced ecology under Section 16 of Article II as an exception, the
present petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the protection of marine
wealth (Article XII, Section 2, paragraph 2 51) and subsistence fishermen (Article
XIII, Section 752), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a maritime delineation binds
the international community since the delineation is in strict observance of
UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines.
UNCLOS III creates a sui generis maritime space the exclusive economic zone in
waters previously part of the high seas. UNCLOS III grants new rights to coastal
States to exclusively exploit the resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of
other States that attached to this zone beyond the territorial sea before UNCLOS
III.

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522. 54 We have looked at the relevant provision
of UNCLOS III55 and we find petitioners reading plausible. Nevertheless, the
prerogative of choosing this option belongs to Congress, not to this Court. Moreover,
the luxury of choosing this option comes at a very steep price. Absent an UNCLOS
III compliant baselines law, an archipelagic State like the Philippines will find itself
devoid of internationally acceptable baselines from where the breadth of its
maritime zones and continental shelf is measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to the seafaring powers to freely enter and
exploit the resources in the waters and submarine areas around our archipelago;
and second, it weakens the countrys case in any international dispute over
Philippine maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-
recognized delimitation of the breadth of the Philippines maritime zones and
continental shelf. RA 9522 is therefore a most vital step on the part of the
Philippines in safeguarding its maritime zones, consistent with the Constitution
and our national interest.

WHEREFORE, we DISMISS the petition.

 SO ORDERED.

Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 204819 April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in

behalf of their minor children, LUCIA CARLOS IMBONG and
BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD
DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI],

represented by its President, Maria Concepcion S. Noche, Spouses
Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. &
Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista,
Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco &
Carol Anne C. Tansingco for themselves and on behalf of their minor
children, Therese Antonette C. Tansingco, Lorenzo Jose C. Tansingco,
Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for
themselves and on behalf of their minor children, Ramon Carlos Z. Araneta
& Maya Angelica Z. Araneta, Spouses Renato C. Castor & Mildred C. Castor
for themselves and on behalf of their minor children, Renz Jeffrey C.
Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf
of their minor children Margarita Racho, Mikaela Racho, Martin Racho,
Mari Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V.
Racho for themselves and on behalf of their minor children Michael Racho,
Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura Racho,
Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf
of their minor child Gabriel Racho, Mindy M. Juatas and on behalf of her
minor children Elijah Gerald Juatas and Elian Gabriel Juatas, Salvacion
M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws,Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports, HON. CORAZON
SOLIMAN, Secretary, Department of Social Welfare and Development,
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ARSENIO M. BALISACAN, Socio-Economic
Planning Secretary and NEDA Director-General, THE PHILIPPINE
COMMISSION ON WOMEN, represented by its Chairperson, Remedios
lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF
PROVINCES OF THE PHILIPPINES, represented by its President Alfonso
Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES, represented by
its President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES
OF THE PHILIPPINES, represented by its President Donato
Marcos, Respondents.

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

G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S.
AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary, Department of Education; and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B.

Lumicao, M.D., as President and in his personal capacity, ROSEVALE
FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as
member of the school board and in his personal capacity, ROSEMARIE R.
ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd.,
ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I.
YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE
OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Health; HON. ARMIN A. LUISTRO, Secretary, Department of Education
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.

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

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
HON. SENATE PRESIDENT, HON. SPEAKER OF THE HOUSE OF
REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.

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

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE

OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO,
DBM SECRETARY FLORENCIO B. ABAD, DILG SECRETARY MANUELA.
ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.

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

G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein

represented by its National President, Atty. Ricardo M . Ribo, and in his
own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C.
Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan,
Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr.,
Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS
II, Secretary, Department of Interior and Local Government, HON.
CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. ARSENIO BALISACAN, Director-General, National
Economic and Development Authority, HON. SUZETTE H. LAZO, Director-
General, Food and Drugs Administration, THE BOARD OF DIRECTORS,
Philippine Health Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on Women, Respondents.
x---------------------------------x

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T.

DOMINGO, M.D., AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively
known as Doctors For Life, and ANTHONY PEREZ, MICHAEL ANTHONY
G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE
NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B.
ABAD, Secretary of the Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary of the Department of Health; HON. ARMIN A.
LUISTRO, Secretary of the Department of Education; and HON.
MANUELA. ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.

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

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F.

PAGUIA, for themselves, their Posterity, and the rest of Filipino
posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the
Philippines, Respondent.

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

G.R. No. 205720

PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma

Melegrito, as Executive Director, and in her personal capacity, JOSELYN
B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON
CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE
OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.

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

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA,

ATTY. CITA BORROMEO-GARCIA, STELLAACEDERA, ATTY. BERTENI
CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY,
DEPARTMENT OF HEALTH, DEPARTMENT OF EDUCATION, Respondents.

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

G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B.

LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS
and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS

ARTADI SARMIENTO AND FRANCESCA ISABELLE BESINGA-
SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and
DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T.
ONA, Secretary of the Department of Health, and HON. ARMIN A.
LUISTRO,Secretary of the Department of Budget and
Management,Respondents.

DECISION

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our

fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of conscience,
to allow each man to believe as his conscience directs, to profess his beliefs , and to
live as he believes he ought to live, consistent with the liberty of others and with the
common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as a
developed country, leaving our people beleaguered in a state of hunger, illiteracy
and unemployment. While governmental policies have been geared towards the
revitalization of the economy, the bludgeoning dearth in social services remains to
be a problem that concerns not only the poor, but every member of society. The
government continues to tread on a trying path to the realization of its very
purpose, that is, the general welfare of the Filipino people and the development of
the country as a whole. The legislative branch, as the main facet of a representative
government, endeavors to enact laws and policies that aim to remedy looming
societal woes, while the executive is closed set to fully implement these measures
and bring concrete and substantial solutions within the reach of Juan dela Cruz.
Seemingly distant is the judicial branch, oftentimes regarded as an inert
governmental body that merely casts its watchful eyes on clashing stakeholders
until it is called upon to adjudicate. Passive, yet reflexive when called into action,
the Judiciary then willingly embarks on its solemn duty to interpret legislation vis-
a-vis the most vital and enduring principle that holds Philippine society together -
the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population
growth control, abortion and contraception. As in every democratic society,
diametrically opposed views on the subjects and their perceived consequences freely
circulate in various media. From television debates 2 to sticker campaigns,3 from
rallies by socio-political activists to mass gatherings organized by members of the
clergy4 - the clash between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep division in every level of
the society. Despite calls to withhold support thereto, however, Republic Act (R.A.)
No. 10354, otherwise known as the Responsible Parenthood and Reproductive
Health Act of 2012 (RH Law), was enacted by Congress on December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from
various sectors of society came knocking on the doors of the Court, beckoning it to
wield the sword that strikes down constitutional disobedience. Aware of the
profound and lasting impact that its decision may produce, the Court now faces the
iuris controversy, as presented in fourteen (14) petitions and two (2) petitions- in-
intervention, to wit:
(1) Petition for Certiorari and Prohibition, 5 filed by spouses Attys. James M.
Imbong and Lovely Ann C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their minor children; and the
Magnificat Child Leaming Center, Inc., a domestic, privately-owned
educational institution (Jmbong);

(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche 7 and
several others8 in their personal capacities as citizens and on behalf of the
generations unborn (ALFI);

(3) Petition for Certiorari,9 filed by the Task Force for Family and Life
Visayas, Inc., and Valeriano S. Avila, in their capacities as citizens and
taxpayers (Task Force Family);

(4) Petition for Certiorari and Prohibition, 10 filed by Serve Life Cagayan De
Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned
educational institution, and several others,13 in their capacities as citizens
(Serve Life);

(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen

(Bugarin);

(6) Petition for Certiorari and Prohibition, 15 filed by Eduardo Olaguer and the
Catholic Xybrspace Apostolate of the Philippines, 16 in their capacities as a
citizens and taxpayers (Olaguer);

(7) Petition for Certiorari and Prohibition, 17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and
taxpayers (PAX);

(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others, 21 in their
capacities as citizens and taxpayers (Echavez);

(9) Petition for Certiorari and Prohibition, 22 filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as
citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is
also proceeding in his capacity as a member of the Bar (Tatad);
 (10) Petition for Certiorari and Prohibition, 23 filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar (Pro-
Life);

(11) Petition for Prohibition,26 filed by Millennium Saint Foundation,

Inc.,27 Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and
Berteni Catalufia Causing, in their capacities as citizens, taxpayers and
members of the Bar (MSF);

(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and
several others,29 in their capacities as citizens (Juat) ;

(13) Petition for Certiorari and Prohibition, 30 filed by Couples for Christ
Foundation, Inc. and several others,31 in their capacities as citizens (CFC);

(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein
M. Kashim in their capacities as citizens and taxpayers (Tillah); and

(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his

capacity as a citizen and a taxpayer (Alcantara); and

(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B

UHAY) , an accredited political party.

A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following GROUNDS:

The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from
conception.35

The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides
 universal access to contraceptives which are hazardous to one's health, as it
causes cancer and other health problems.36

The RH Law violates the right to religious freedom. The petitioners contend
that the RH Law violates the constitutional guarantee respecting religion as
it authorizes the use of public funds for the procurement of contraceptives.
For the petitioners, the use of public funds for purposes that are believed to
be contrary to their beliefs is included in the constitutional mandate ensuring
religious freedom.37

It is also contended that the RH Law threatens conscientious objectors of criminal

prosecution, imprisonment and other forms of punishment, as it compels medical
practitioners 1] to refer patients who seek advice on reproductive health programs
to other doctors; and 2] to provide full and correct information on reproductive
health programs and service, although it is against their religious beliefs and
convictions.38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the
RH Law (RH-IRR),39 provides that skilled health professionals who are public
officers such as, but not limited to, Provincial, City, or Municipal Health Officers,
medical officers, medical specialists, rural health physicians, hospital staff nurses,
public health nurses, or rural health midwives, who are specifically charged with
the duty to implement these Rules, cannot be considered as conscientious
objectors.40

It is also argued that the RH Law providing for the formulation of mandatory sex
education in schools should not be allowed as it is an affront to their religious
beliefs.41

While the petit10ners recognize that the guarantee of religious freedom is not
absolute, they argue that the RH Law fails to satisfy the "clear and present danger
test" and the "compelling state interest test" to justify the regulation of the right to
free exercise of religion and the right to free speech.42

The RH Law violates the constitutional provision on involuntary servitude.

According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth
program, they are compelled to provide forty-eight (48) hours of pro bona
 services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.43

The petitioners explain that since a majority of patients are covered by PhilHealth,
a medical practitioner would effectively be forced to render reproductive health
services since the lack of PhilHealth accreditation would mean that the majority of
the public would no longer be able to avail of the practitioners services. 44

The RH Law violates the right to equal protection of the law. It is claimed
that the RH Law discriminates against the poor as it makes them the
primary target of the government program that promotes contraceptive use.
The petitioners argue that, rather than promoting reproductive health among
the poor, the RH Law seeks to introduce contraceptives that would effectively
reduce the number of the poor.45

The RH Law is "void-for-vagueness" in violation of the due process clause of

the Constitution. In imposing the penalty of imprisonment and/or fine for
"any violation," it is vague because it does not define the type of conduct to be
treated as "violation" of the RH Law.46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to
due process by removing from them (the people) the right to manage their own
affairs and to decide what kind of health facility they shall be and what kind of
services they shall offer."47 It ignores the management prerogative inherent in
corporations for employers to conduct their affairs in accordance with their own
discretion and judgment.

The RH Law violates the right to free speech. To compel a person to explain
a full range of family planning methods is plainly to curtail his right to
expound only his own preferred way of family planning. The petitioners note
that although exemption is granted to institutions owned and operated by
religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.48

The RH Law intrudes into the zone of privacy of one's family protected by
the Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to
raise their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between the
spouses and impedes the right of spouses to mutually decide on matters pertaining
to the overall well-being of their family. In the same breath, it is also claimed that
the parents of a child who has suffered a miscarriage are deprived of parental
authority to determine whether their child should use contraceptives. 50

The RH Law violates the constitutional principle of non-delegation of

legislative authority. The petitioners question the delegation by Congress to
the FDA of the power to determine whether a product is non-abortifacient
and to be included in the Emergency Drugs List (EDL).51

The RH Law violates the one subject/one bill rule provision under Section
26( 1 ), Article VI of the Constitution.52

The RH Law violates Natural Law.53

The RH Law violates the principle of Autonomy of Local Government Units

(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM). It is
contended that the RH Law, providing for reproductive health measures at
the local government level and the ARMM, infringes upon the powers
devolved to LGUs and the ARMM under the Local Government Code and
R.A . No. 9054.54

Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law. Aside
from the Office of the Solicitor General (OSG) which commented on the petitions in
behalf of the respondents,55 Congressman Edcel C. Lagman,56 former officials of the
Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto
G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH), 58 Ana
Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia 60 also filed their respective
Comments-in-Intervention in conjunction with several others. On June 4, 2013,
Senator Pia Juliana S. Cayetano was also granted leave to intervene. 61

The respondents, aside from traversing the substantive arguments of the

petitioners, pray for the dismissal of the petitions for the principal reasons that 1]
there is no actual case or controversy and, therefore, the issues are not yet ripe for
judicial determination.; 2] some petitioners lack standing to question the RH Law;
and 3] the petitions are essentially petitions for declaratory relief over which the
Court has no original jurisdiction.

Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed
legislation took effect.

On March 19, 2013, after considering the issues and arguments raised, the Court
issued the Status Quo Ante Order (SQAO), enjoining the effects and implementation
of the assailed legislation for a period of one hundred and twenty (120) days, or until
July 17, 2013.62

On May 30, 2013, the Court held a preliminary conference with the counsels of the
parties to determine and/or identify the pertinent issues raised by the parties and
the sequence by which these issues were to be discussed in the oral arguments. On
July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered extended until further orders of
the Court.63

Thereafter, the Court directed the parties to submit their respective memoranda
within sixty (60) days and, at the same time posed several questions for their
clarification on some contentions of the parties.64

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back as
June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to Regu,late the
Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices."
Although contraceptive drugs and devices were allowed, they could not be sold,
dispensed or distributed "unless such sale, dispensation and distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a
qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions
relative to "dispensing of abortifacients or anti-conceptional substances and
devices." Under Section 37 thereof, it was provided that "no drug or chemical
product or device capable of provoking abortion or preventing conception as
classified by the Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician."

On December 11, 1967, the Philippines, adhering to the UN Declaration on

Population, which recognized that the population problem should be considered as
the principal element for long-term economic development, enacted measures that
promoted male vasectomy and tubal ligation to mitigate population
growth.67 Among these measures included R.A. No. 6365, approved on August 16,
1971, entitled "An Act Establishing a National Policy on Population, Creating the
Commission on Population and for Other Purposes. " The law envisioned that
"family planning will be made part of a broad educational program; safe and
effective means will be provided to couples desiring to space or limit family size;
mortality and morbidity rates will be further reduced."

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued
Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others,
made "family planning a part of a broad educational program," provided "family
planning services as a part of over-all health care," and made "available all
acceptable methods of contraception, except abortion, to all Filipino citizens desirous
of spacing, limiting or preventing pregnancies."

Through the years, however, the use of contraceptives and family planning methods
evolved from being a component of demographic management, to one centered on
the promotion of public health, particularly, reproductive health. 69 Under that policy,
the country gave priority to one's right to freely choose the method of family
planning to be adopted, in conformity with its adherence to the commitments made
in the International Conference on Population and Development. 70 Thus, on August
14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, "
which, among others, mandated the State to provide for comprehensive health
services and programs for women, including family planning and sex education. 71

The RH Law
Despite the foregoing legislative measures, the population of the country kept on
galloping at an uncontrollable pace. From a paltry number of just over 27 million
Filipinos in 1960, the population of the country reached over 76 million in the year
2000 and over 92 million in 2010. 72 The executive and the legislative, thus, felt that
the measures were still not adequate. To rein in the problem, the RH Law was
enacted to provide Filipinos, especially the poor and the marginalized, access and
information to the full range of modem family planning methods, and to ensure that
its objective to provide for the peoples' right to reproductive health be achieved. To
make it more effective, the RH Law made it mandatory for health providers to
provide information on the full range of modem family planning methods, supplies
and services, and for schools to provide reproductive health education. To put teeth
to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make

effective the current laws on contraception, women's health and population control.

Prayer of the Petitioners - Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates the right
to health of women and the sanctity of life, which the State is mandated to protect
and promote. Thus, ALFI prays that "the status quo ante - the situation prior to the
passage of the RH Law - must be maintained." 73 It explains:

x x x. The instant Petition does not question contraception and contraceptives per
se. As provided under Republic Act No. 5921 and Republic Act No. 4729, the sale
and distribution of contraceptives are prohibited unless dispensed by a prescription
duly licensed by a physician. What the Petitioners find deplorable and repugnant
under the RH Law is the role that the State and its agencies - the entire
bureaucracy, from the cabinet secretaries down to the barangay officials in the
remotest areas of the country - is made to play in the implementation of the
contraception program to the fullest extent possible using taxpayers' money. The
State then will be the funder and provider of all forms of family planning methods
and the implementer of the program by ensuring the widespread dissemination of,
and universal access to, a full range of family planning methods, devices and
supplies.74
ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court
has synthesized and refined them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over
the controversy.

1] Power of Judicial Review

2] Actual Case or Controversy

3] Facial Challenge

4] Locus Standi

5] Declaratory Relief

6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life

2] Right to Health

3] Freedom of Religion and the Right to Free Speech

4] The Family

5] Freedom of Expression and Academic Freedom

6] Due Process

7] Equal Protection

8] Involuntary Servitude

9] Delegation of Authority to the FDA

 10] Autonomy of Local Govemments/ARMM

DISCUSSION

Before delving into the constitutionality of the RH Law and its implementing rules,
it behooves the Court to resolve some procedural impediments.

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial
review over the controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that
it should submit to the legislative and political wisdom of Congress and respect the
compromises made in the crafting of the RH Law, it being "a product of a
majoritarian democratic process"75 and "characterized by an inordinate amount of
transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the
discretion to implement the constitutional policies and positive norms with the
political departments, in particular, with Congress. 77 It further asserts that in view
of the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council, 78 the
remedies of certiorari and prohibition utilized by the petitioners are improper to
assail the validity of the acts of the legislature. 79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper
considering that the assailed law has yet to be enforced and applied to the
petitioners, and that the government has yet to distribute reproductive health
devices that are abortive. It claims that the RH Law cannot be challenged "on its
face" as it is not a speech-regulating measure.80

In many cases involving the determination of the constitutionality of the actions of

the Executive and the Legislature, it is often sought that the Court temper its
exercise of judicial power and accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of government, which
obtains not through express provision but by actual division in our Constitution.
Each department of the government has exclusive cognizance of matters within its
jurisdiction and is supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested
in the Congress of the Philippines;82 (b) the executive power shall be vested in the
President of the Philippines;83 and (c) the judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law. 84 The
Constitution has truly blocked out with deft strokes and in bold lines, the allotment
of powers among the three branches of government.85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of the
nature of their functions and of their respect for the other branches of government,
in striking down the acts of the Executive or the Legislature as unconstitutional.
Verily, the policy is a harmonious blend of courtesy and caution. 86

It has also long been observed, however, that in times of social disquietude or
political instability, the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. 87 In order to address this, the Constitution
impresses upon the Court to respect the acts performed by a co-equal branch done
within its sphere of competence and authority, but at the same time, allows it to
cross the line of separation - but only at a very limited and specific point - to
determine whether the acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of discretion. 88 Thus, while the
Court may not pass upon questions of wisdom, justice or expediency of the RH Law,
it may do so where an attendant unconstitutionality or grave abuse of discretion
results.89 The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.

In this connection, it bears adding that while the scope of judicial power of review
may be limited, the Constitution makes no distinction as to the kind of legislation
that may be subject to judicial scrutiny, be it in the form of social legislation or
otherwise. The reason is simple and goes back to the earlier point. The Court may
pass upon the constitutionality of acts of the legislative and the executive branches,
since its duty is not to review their collective wisdom but, rather, to make sure that
they have acted in consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of proscribing
the actions under review.90 This is in line with Article VIII, Section 1 of the
Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.

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

As far back as Tanada v. Angara,91 the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in Macalintal
v. COMELEC,92 Aldaba v. COMELEC,93Magallona v. Ermita,94 and countless others.
In Tanada, the Court wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it

contravenes the Constitution, the petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. "The question thus posed is judicial rather than political. The
duty (to adjudicate) remains to assure that the supremacy of the Constitution is
upheld. " Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by constitutional mandate to decide.
[Emphasis supplied]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano,

"judicial review is essential for the maintenance and enforcement of the separation
of powers and the balancing of powers among the three great departments of
government through the definition and maintenance of the boundaries of authority
and control between them. To him, judicial review is the chief, indeed the only,
medium of participation - or instrument of intervention - of the judiciary in that
balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of judicial review is limited by
four exacting requisites, viz : (a) there must be an actual case or controversy; (b) the
petitioners must possess locus standi; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must be the
lis mota of the case.96

Actual Case or Controversy

Proponents of the RH Law submit that the subj ect petitions do not present any
actual case or controversy because the RH Law has yet to be implemented. 97 They
claim that the questions raised by the petitions are not yet concrete and ripe for
adjudication since no one has been charged with violating any of its provisions and
that there is no showing that any of the petitioners' rights has been adversely
affected by its operation.98 In short, it is contended that judicial review of the RH
Law is premature.

An actual case or controversy means an existing case or controversy that is

appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion. 99 The rule is that courts
do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciable-definite and
concrete, touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof, on the other; that is, it must concern a
real, tangible and not merely a theoretical question or issue. There ought to be an
actual and substantial controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts.100

Corollary to the requirement of an actual case or controversy is the requirement of

ripeness.101 A question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it. For a case to be
considered ripe for adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an immediate or threatened
injury to himself as a result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of
the act complained of102

In The Province of North Cotabato v. The Government of the Republic of the

Philippines,103 where the constitutionality of an unimplemented Memorandum of
Agreement on the Ancestral Domain (MOA-AD) was put in question, it was argued
that the Court has no authority to pass upon the issues raised as there was yet no
concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act
in question being not yet effective does not negate ripeness. Concrete acts under a
law are not necessary to render the controversy ripe. Even a singular violation of
the Constitution and/or the law is enough to awaken judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and
that the same is ripe for judicial determination. Considering that the RH Law and
its implementing rules have already taken effect and that budgetary measures to
carry out the law have already been passed, it is evident that the subject petitions
present a justiciable controversy. As stated earlier, when an action of the legislative
branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute. 104

Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health officers
who are threatened to be dismissed from the service with forfeiture of retirement
and other benefits. They must, at least, be heard on the matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject
petitions, contending that the RH Law cannot be challenged "on its face" as it is not
a speech regulating measure.105

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes
concerning not only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom of the press, and the right
of the people to peaceably assemble, and to petition the Government for a redress of
grievances.107 After all, the fundamental right to religious freedom, freedom of the
press and peaceful assembly are but component rights of the right to one's freedom
of expression, as they are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has
withheld the application of facial challenges to strictly penal statues, 108 it has
expanded its scope to cover statutes not only regulating free speech, but also those
involving religious freedom, and other fundamental rights. 109 The underlying reason
for this modification is simple. For unlike its counterpart in the U.S., this Court,
under its expanded jurisdiction, is mandated by the Fundamental Law not only to
settle actual controversies involving rights which are legally demandable and
enforceable, but also to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.110 Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that
the constitutional human rights to life, speech and religion and other fundamental
rights mentioned above have been violated by the assailed legislation, the Court has
authority to take cognizance of these kindred petitions and to determine if the RH
Law can indeed pass constitutional scrutiny. To dismiss these petitions on the
simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law
has been transgressed, to the detriment of the Filipino people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective
petitions. It contends that the "as applied challenge" lodged by the petitioners
cannot prosper as the assailed law has yet to be enforced and applied against
them,111 and the government has yet to distribute reproductive health devices that
are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance"
doctrine and their status as citizens and taxpayers in establishing the requisite
locus standi.

Locus standi or legal standing is defined as a personal and substantial interest in a

case such that the party has sustained or will sustain direct injury as a result of the
challenged governmental act.113 It requires a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult
constitutional questions.114

In relation to locus standi, the "as applied challenge" embodies the rule that one can
challenge the constitutionality of a statute only if he asserts a violation of his own
rights. The rule prohibits one from challenging the constitutionality of the statute
grounded on a violation of the rights of third persons not before the court. This rule
is also known as the prohibition against third-party standing. 115

Transcendental Importance

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a
matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest."116

In Coconut Oil Refiners Association, Inc. v. Torres, 117 the Court held that in cases of
paramount importance where serious constitutional questions are involved, the
standing requirement may be relaxed and a suit may be allowed to prosper even
where there is no direct injury to the party claiming the right of judicial review. In
the first Emergency Powers Cases,118 ordinary citizens and taxpayers were allowed
to question the constitutionality of several executive orders although they had only
an indirect and general interest shared in common with the public.

With these said, even if the constitutionality of the RH Law may not be assailed
through an "as-applied challenge, still, the Court has time and again acted liberally
on the locus s tandi requirement. It has accorded certain individuals standing to
sue, not otherwise directly injured or with material interest affected by a
Government act, provided a constitutional issue of transcendental importance is
invoked. The rule on locus standi is, after all, a procedural technicality which the
Court has, on more than one occasion, waived or relaxed, thus allowing non-
traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to
sue in the public interest, albeit they may not have been directly injured by the
operation of a law or any other government act. As held in Jaworski v. PAGCOR:119

Granting arguendo that the present action cannot be properly treated as a petition
for prohibition, the transcendental importance of the issues involved in this case
warrants that we set aside the technical defects and take primary jurisdiction over
the petition at bar. One cannot deny that the issues raised herein have potentially
pervasive influence on the social and moral well being of this nation, specially the
youth; hence, their proper and just determination is an imperative need. This is in
accordance with the well-entrenched principle that rules of procedure are not
inflexible tools designed to hinder or delay, but to facilitate and promote the
administration of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate, rather than promote substantial justice, must
always be eschewed. (Emphasis supplied)

In view of the seriousness, novelty and weight as precedents, not only to the public,
but also to the bench and bar, the issues raised must be resolved for the guidance of
all. After all, the RH Law drastically affects the constitutional provisions on the
right to life and health, the freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a
broad spectrum of society, the Court entertains no doubt that the petitions raise
issues of transcendental importance warranting immediate court adjudication.
More importantly, considering that it is the right to life of the mother and the
unborn which is primarily at issue, the Court need not wait for a life to be taken
away before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when
rights enshrined in the Constitution are being imperilled to be violated. To do so,
when the life of either the mother or her child is at stake, would lead to irreparable
consequences.

Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for
declaratory relief over which the Court has no original jurisdiction. 120 Suffice it to
state that most of the petitions are praying for injunctive reliefs and so the Court
would just consider them as petitions for prohibition under Rule 65, over which it
has original jurisdiction. Where the case has far-reaching implications and prays for
injunctive reliefs, the Court may consider them as petitions for prohibition under
Rule 65.121

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it
violates Section 26(1 ), Article VI of the Constitution, 122 prescribing the one subject-
one title rule. According to them, being one for reproductive health with responsible
parenthood, the assailed legislation violates the constitutional standards of due
process by concealing its true intent - to act as a population control measure.123

To belittle the challenge, the respondents insist that the RH Law is not a birth or
population control measure,124and that the concepts of "responsible parenthood" and
"reproductive health" are both interrelated as they are inseparable. 125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it
as principally a population control measure. The corpus of the RH Law is geared
towards the reduction of the country's population. While it claims to save lives and
keep our women and children healthy, it also promotes pregnancy-preventing
products. As stated earlier, the RH Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning
methods, natural or modem, however, are clearly geared towards the prevention of
pregnancy.

For said reason, the manifest underlying objective of the RH Law is to reduce the
number of births in the country.

It cannot be denied that the measure also seeks to provide pre-natal and post-natal
care as well. A large portion of the law, however, covers the dissemination of
information and provisions on access to medically-safe, non-abortifacient, effective,
legal, affordable, and quality reproductive health care services, methods, devices,
and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the RH
Law.126 Indeed, remove the provisions that refer to contraception or are related to it
and the RH Law loses its very foundation. 127 As earlier explained, "the other positive
provisions such as skilled birth attendance, maternal care including pre-and post-
natal services, prevention and management of reproductive tract infections
including HIV/AIDS are already provided for in the Magna Carta for Women." 128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In
Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph
G Escudero, it was written:

It is well-settled that the "one title-one subject" rule does not require the Congress
to employ in the title of the enactment language of such precision as to mirror, fully
index or catalogue all the contents and the minute details therein. The rule is
sufficiently complied with if the title is comprehensive enough as to include the
general object which the statute seeks to effect, and where, as here, the persons
interested are informed of the nature, scope and consequences of the proposed law
and its operation. Moreover, this Court has invariably adopted a liberal rather than
technical construction of the rule "so as not to cripple or impede legislation."
[Emphases supplied]

In this case, a textual analysis of the various provisions of the law shows that both
"reproductive health" and "responsible parenthood" are interrelated and germane to
the overriding objective to control the population growth. As expressed in the first
paragraph of Section 2 of the RH Law:

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human
rights of all persons including their right to equality and nondiscrimination of these
rights, the right to sustainable human development, the right to health which
includes reproductive health, the right to education and information, and the right
to choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not
be "so uncertain that the average person reading it would not be informed of the
purpose of the enactment or put on inquiry as to its contents, or which is
misleading, either in referring to or indicating one subject where another or
different one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."129

Considering the close intimacy between "reproductive health" and "responsible

parenthood" which bears to the attainment of the goal of achieving "sustainable
human development" as stated under its terms, the Court finds no reason to believe
that Congress intentionally sought to deceive the public as to the contents of the
assailed legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life

Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of
the unborn child under Section 12, Article II of the Constitution. The assailed
legislation allowing access to abortifacients/abortives effectively sanctions
abortion.130

According to the petitioners, despite its express terms prohibiting abortion, Section
4(a) of the RH Law considers contraceptives that prevent the fertilized ovum to
reach and be implanted in the mother's womb as an abortifacient; thus, sanctioning
contraceptives that take effect after fertilization and prior to implantation, contrary
to the intent of the Framers of the Constitution to afford protection to the fertilized
ovum which already has life.

They argue that even if Section 9 of the RH Law allows only "non-abortifacient"
hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-
abortifacient and effective family planning products and supplies, medical research
shows that contraceptives use results in abortion as they operate to kill the
fertilized ovum which already has life.131

As it opposes the initiation of life, which is a fundamental human good, the

petitioners assert that the State sanction of contraceptive use contravenes natural
law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and
Drug Administration (FDA) to certify that the product or supply is not to be used as
an abortifacient, the assailed legislation effectively confirms that abortifacients are
not prohibited. Also considering that the FDA is not the agency that will actually
supervise or administer the use of these products and supplies to prospective
patients, there is no way it can truthfully make a certification that it shall not be
used for abortifacient purposes.133

Position of the Respondents

For their part, the defenders of the RH Law point out that the intent of the Framers
of the Constitution was simply the prohibition of abortion. They contend that the
RH Law does not violate the Constitution since the said law emphasizes that only
"non-abortifacient" reproductive health care services, methods, devices products and
supplies shall be made accessible to the public.134

According to the OSG, Congress has made a legislative determination that

contraceptives are not abortifacients by enacting the RH Law. As the RH Law was
enacted with due consideration to various studies and consultations with the World
Health Organization (WHO) and other experts in the medical field, it is asserted
that the Court afford deference and respect to such a determination and pass
judgment only when a particular drug or device is later on determined as an
abortive.135

For his part, respondent Lagman argues that the constitutional protection of one's
right to life is not violated considering that various studies of the WHO show that
life begins from the implantation of the fertilized ovum. Consequently, he argues
that the RH Law is constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the fertilized ovum are
allowed.136

The Court's Position

It is a universally accepted principle that every human being enjoys the right to
life.137
Even if not formally established, the right to life, being grounded on natural law, is
inherent and, therefore, not a creation of, or dependent upon a particular law,
custom, or belief. It precedes and transcends any authority or the laws of men.

In this jurisdiction, the right to life is given more than ample protection. Section 1,
Article III of the Constitution provides:

Section 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the laws.

As expounded earlier, the use of contraceptives and family planning methods in the
Philippines is not of recent vintage. From the enactment of R.A. No. 4729, entitled
"An Act To Regulate The Sale, Dispensation, and/or Distribution of Contraceptive
Drugs and Devices "on June 18, 1966, prescribing rules on contraceptive drugs and
devices which prevent fertilization,138 to the promotion of male vasectomy and tubal
ligation,139 and the ratification of numerous international agreements, the country
has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through the
years, however, the use of contraceptives and other family planning methods evolved
from being a component of demographic management, to one centered on the
promotion of public health, particularly, reproductive health. 140

This has resulted in the enactment of various measures promoting women's rights
and health and the overall promotion of the family's well-being. Thus, aside from
R.A. No. 4729, R.A. No. 6365 or "The Population Act of the Philippines" and R.A.
No. 9710, otherwise known as the "The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine national population program
has always been grounded two cornerstone principles: "principle of no-abortion" and
the "principle of non-coercion."141 As will be discussed later, these principles are not
merely grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and
guarantee religious freedom.

When Life Begins*

Majority of the Members of the Court are of the position that the question of when
life begins is a scientific and medical issue that should not be decided, at this stage,
without proper hearing and evidence. During the deliberation, however, it was
agreed upon that the individual members of the Court could express their own
views on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:

Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception. The natural
and primary right and duty of parents in the rearing of the youth for civic efficiency
and the development of moral character shall receive the support of the
Government.

Textually, the Constitution affords protection to the unborn from conception. This is
undisputable because before conception, there is no unborn to speak of. For said
reason, it is no surprise that the Constitution is mute as to any proscription prior to
conception or when life begins. The problem has arisen because, amazingly, there
are quarters who have conveniently disregarded the scientific fact that conception is
reckoned from fertilization. They are waving the view that life begins at
implantation. Hence, the issue of when life begins.

In a nutshell, those opposing the RH Law contend that conception is synonymous

with "fertilization" of the female ovum by the male sperm. 142 On the other side of the
spectrum are those who assert that conception refers to the "implantation" of the
fertilized ovum in the uterus.143

Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution should be

interpreted in their plain and ordinary meaning. As held in the recent case of
Chavez v. Judicial Bar Council:144

One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation. It is a well-settled
principle of constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where technical terms
are employed. As much as possible, the words of the Constitution should be
understood in the sense they have in common use. What it says according to the text
of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what
they say. Verba legis non est recedendum - from the words of a statute there should
be no departure.

The raison d' etre for the rule is essentially two-fold: First, because it is assumed
that the words in which constitutional provisions are couched express the objective
sought to be attained; and second, because the Constitution is not primarily a
lawyer's document but essentially that of the people, in whose consciousness it
should ever be present as an important condition for the rule of law to prevail.

In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable sources,
means that life begins at fertilization.

Webster's Third New International Dictionary describes it as the act of becoming

pregnant, formation of a viable zygote; the fertilization that results in a new entity
capable of developing into a being like its parents.145

Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in human life
capable of survival and maturation under normal conditions. 146

Even in jurisprudence, an unborn child has already a legal personality. In

Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:

Life is not synonymous with civil personality. One need not acquire civil personality
first before he/she could die. Even a child inside the womb already has life. No less
than the Constitution recognizes the life of the unborn from conception, that the
State must protect equally with the life of the mother. If the unborn already has life,
then the cessation thereof even prior to the child being delivered, qualifies as death.
[Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme
Court, said that the State "has respect for human life at all stages in the pregnancy"
and "a legitimate and substantial interest in preserving and promoting fetal life."
Invariably, in the decision, the fetus was referred to, or cited, as a baby or a child. 149

Intent of the Framers

Records of the Constitutional Convention also shed light on the intention of the
Framers regarding the term "conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:

Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

"The State shall equally protect the life of the mother and the life of the unborn from
the moment of conception."

When is the moment of conception?

xxx

Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is

fertilized by the sperm that there is human life. x x x.150

xxx

As to why conception is reckoned from fertilization and, as such, the beginning of

human life, it was explained:

Mr. Villegas: I propose to review this issue in a biological manner. The first question
that needs to be answered is: Is the fertilized ovum alive? Biologically categorically
says yes, the fertilized ovum is alive. First of all, like all living organisms, it takes in
nutrients which it processes by itself. It begins doing this upon fertilization.
Secondly, as it takes in these nutrients, it grows from within. Thirdly, it multiplies
itself at a geometric rate in the continuous process of cell division. All these
processes are vital signs of life. Therefore, there is no question that biologically the
fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the
moment of conception, the nuclei of the ovum and the sperm rupture. As this
happens 23 chromosomes from the ovum combine with 23 chromosomes of the
sperm to form a total of 46 chromosomes. A chromosome count of 46 is found only -
and I repeat, only in human cells. Therefore, the fertilized ovum is human.

Since these questions have been answered affirmatively, we must conclude that if
the fertilized ovum is both alive and human, then, as night follows day, it must be
human life. Its nature is human.151

Why the Constitution used the phrase "from the moment of conception" and not
"from the moment of fertilization" was not because of doubt when human life begins,
but rather, because:

Mr. Tingson: x x x x the phrase from the moment of conception" was described by us
here before with the scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the simpler phrase "from the moment
of conception."152

Thus, in order to ensure that the fertilized ovum is given ample protection under the
Constitution, it was discussed:

Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of
writing a Constitution, without specifying "from the moment of conception."

Mr. Davide: I would not subscribe to that particular view because according to the
Commissioner's own admission, he would leave it to Congress to define when life
begins. So, Congress can define life to begin from six months after fertilization; and
that would really be very, very, dangerous. It is now determined by science that life
begins from the moment of conception. There can be no doubt about it. So we should
not give any doubt to Congress, too.153

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point.
Actually, that is one of the questions I was going to raise during the period of
interpellations but it has been expressed already. The provision, as proposed right
now states:
The State shall equally protect the life of the mother and the life of the unborn from
the moment of conception.

When it speaks of "from the moment of conception," does this mean when the egg
meets the sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the right to determine
whether certain contraceptives that we know today are abortifacient or not because
it is a fact that some of the so-called contraceptives deter the rooting of the ovum in
the uterus. If fertilization has already occurred, the next process is for the fertilized
ovum to travel towards the uterus and to take root. What happens with some
contraceptives is that they stop the opportunity for the fertilized ovum to reach the
uterus. Therefore, if we take the provision as it is proposed, these so called
contraceptives should be banned.

Mr. Villegas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned under
this provision.

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state

whether or not these certain contraceptives are abortifacient. Scientifically and
based on the provision as it is now proposed, they are already considered
abortifacient.154

From the deliberations above-quoted, it is apparent that the Framers of the

Constitution emphasized that the State shall provide equal protection to both the
mother and the unborn child from the earliest opportunity of life, that is, upon
fertilization or upon the union of the male sperm and the female ovum. It is also
apparent is that the Framers of the Constitution intended that to prohibit Congress
from enacting measures that would allow it determine when life begins.

Equally apparent, however, is that the Framers of the Constitution did not intend to
ban all contraceptives for being unconstitutional. In fact, Commissioner Bernardo
Villegas, spearheading the need to have a constitutional provision on the right to
life, recognized that the determination of whether a contraceptive device is an
abortifacient is a question of fact which should be left to the courts to decide on
based on established evidence.155

From the discussions above, contraceptives that kill or destroy the fertilized ovum
should be deemed an abortive and thus prohibited. Conversely, contraceptives that
actually prevent the union of the male sperm and the female ovum, and those that
similarly take action prior to fertilization should be deemed non-abortive, and thus,
constitutionally permissible.

As emphasized by the Framers of the Constitution:

xxx xxx xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to

the point that I would like not only to protect the life of the unborn, but also the
lives of the millions of people in the world by fighting for a nuclear-free world. I
would just like to be assured of the legal and pragmatic implications of the term
"protection of the life of the unborn from the moment of conception." I raised some of
these implications this afternoon when I interjected in the interpellation of
Commissioner Regalado. I would like to ask that question again for a categorical
answer.

I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to certain
contraceptives which are already being encouraged at this point in time. Is that the
sense of the committee or does it disagree with me?

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive.
There is no unborn yet. That is yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg which
has already been fertilized from taking route to the uterus. So if we say "from the
moment of conception," what really occurs is that some of these contraceptives will
have to be unconstitutionalized.

Mr. Azcuna: Yes, to the extent that it is after the fertilization.

Mr. Gascon: Thank you, Mr. Presiding Officer.156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even
admitted by petitioners during the oral arguments. There it was conceded that tubal
ligation, vasectomy, even condoms are not classified as abortifacients. 157

Atty. Noche:

Before the union of the eggs, egg and the sperm, there is no life yet.

Justice Bersamin:

There is no life.

Atty. Noche:

So, there is no life to be protected.

Justice Bersamin:

To be protected.

Atty. Noche:

Under Section 12, yes.

Justice Bersamin:

So you have no objection to condoms?

Atty. Noche:

Not under Section 12, Article II.

Justice Bersamin:

Even if there is already information that condoms sometimes have porosity?

Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I
am discussing here Section 12, Article II, Your Honor, yes.

Justice Bersamin:

Alright.

Atty. Noche:

And it's not, I have to admit it's not an abortifacient, Your Honor.158

Medical Meaning

That conception begins at fertilization is not bereft of medical foundation. Mosby s

Medical, Nursing, and Allied Health Dictionary defines conception as "the beginning
of pregnancy usually taken to be the instant a spermatozoon enters an ovum and
forms a viable zygote."159

It describes fertilization as "the union of male and female gametes to form a zygote
from which the embryo develops."160

The Textbook of Obstetrics (Physiological & Pathological Obstetrics), 161 used by

medical schools in the Philippines, also concludes that human life (human person)
begins at the moment of fertilization with the union of the egg and the sperm
resulting in the formation of a new individual, with a unique genetic composition
that dictates all developmental stages that ensue.

Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ cells during
a process known as fertilization (conception). Fertilization is a sequence of events
that begins with the contact of a sperm (spermatozoon) with a secondary oocyte
(ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the sperm
and ovum) and the mingling of their chromosomes to form a new cell. This fertilized
ovum, known as a zygote, is a large diploid cell that is the beginning, or
primordium, of a human being."162

The authors of Human Embryology & Teratology163 mirror the same position. They
wrote: "Although life is a continuous process, fertilization is a critical landmark
because, under ordinary circumstances, a new, genetically distinct human organism
is thereby formed.... The combination of 23 chromosomes present in each pronucleus
results in 46 chromosomes in the zygote. Thus the diploid number is restored and
the embryonic genome is formed. The embryo now exists as a genetic unity."

In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and therein
concluded that:

CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that
PMA maintains its strong position that fertilization is sacred because it is at this
stage that conception, and thus human life, begins. Human lives are sacred from the
moment of conception, and that destroying those new lives is never licit, no matter
what the purported good outcome would be. In terms of biology and human
embryology, a human being begins immediately at fertilization and after that, there
is no point along the continuous line of human embryogenesis where only a
"potential" human being can be posited. Any philosophical, legal, or political
conclusion cannot escape this objective scientific fact.

The scientific evidence supports the conclusion that a zygote is a human organism
and that the life of a new human being commences at a scientifically well defined
"moment of conception." This conclusion is objective, consistent with the factual
evidence, and independent of any specific ethical, moral, political, or religious view
of human life or of human embryos.164

Conclusion: The Moment of Conception is Reckoned from

Fertilization

In all, whether it be taken from a plain meaning, or understood under medical

parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism and
that the life of a new human being commences at a scientifically well-defined
moment of conception, that is, upon fertilization.

For the above reasons, the Court cannot subscribe to the theory advocated by Hon.
Lagman that life begins at implantation.165 According to him, "fertilization and
conception are two distinct and successive stages in the reproductive process. They
are not identical and synonymous." 166 Citing a letter of the WHO, he wrote that
"medical authorities confirm that the implantation of the fertilized ovum is the
commencement of conception and it is only after implantation that pregnancy can
be medically detected."167

This theory of implantation as the beginning of life is devoid of any legal or scientific
mooring. It does not pertain to the beginning of life but to the viability of the fetus.
The fertilized ovum/zygote is not an inanimate object - it is a living human being
complete with DNA and 46 chromosomes. 168 Implantation has been conceptualized
only for convenience by those who had population control in mind. To adopt it would
constitute textual infidelity not only to the RH Law but also to the Constitution.

Not surprisingly, even the OSG does not support this position.

If such theory would be accepted, it would unnervingly legitimize the utilization of

any drug or device that would prevent the implantation of the fetus at the uterine
wall. It would be provocative and further aggravate religious-based divisiveness.

It would legally permit what the Constitution proscribes - abortion and

abortifacients.

The RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the Framers was captured in the record
of the proceedings of the 1986 Constitutional Commission. Commissioner Bernardo
Villegas, the principal proponent of the protection of the unborn from conception,
explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever
passed by Congress or any pro-abortion decision passed by the Supreme Court. 169

A reading of the RH Law would show that it is in line with this intent and actually
proscribes abortion. While the Court has opted not to make any determination, at
this stage, when life begins, it finds that the RH Law itself clearly mandates that
protection be afforded from the moment of fertilization. As pointed out by Justice
Carpio, the RH Law is replete with provisions that embody the policy of the law to
protect to the fertilized ovum and that it should be afforded safe travel to the uterus
for implantation.170

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the
Revised Penal Code, which penalizes the destruction or expulsion of the fertilized
ovum. Thus:

1] xx x.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:

xxx.

(q) Reproductive health care refers to the access to a full range of methods, facilities,
services and supplies that contribute to reproductive health and well-being by
addressing reproductive health-related problems. It also includes sexual health, the
purpose of which is the enhancement of life and personal relations. The elements of
reproductive health care include the following:

xxx.

(3) Proscription of abortion and management of abortion complications;

xxx.

2] xx x.

Section 4. x x x.

(s) Reproductive health rights refers to the rights of individuals and couples, to
decide freely and responsibly whether or not to have children; the number, spacing
and timing of their children; to make other decisions concerning reproduction, free
of discrimination, coercion and violence; to have the information and means to do so;
and to attain the highest standard of sexual health and reproductive health:
Provided, however, That reproductive health rights do not include abortion, and
access to abortifacients.
3] xx x.

SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law,
presidential decree or issuance, executive order, letter of instruction, administrative
order, rule or regulation contrary to or is inconsistent with the provisions of this Act
including Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby
repealed, modified or amended accordingly.

The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting

abortifacients. To be clear, Section 4(a) of the RH Law defines an abortifacient as:

Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of the
FDA.

As stated above, the RH Law mandates that protection must be afforded from the
moment of fertilization. By using the word " or," the RH Law prohibits not only
drugs or devices that prevent implantation, but also those that induce abortion and
those that induce the destruction of a fetus inside the mother's womb. Thus, an
abortifacient is any drug or device that either:

(a) Induces abortion; or

(b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's
womb, upon determination of the FDA.

Contrary to the assertions made by the petitioners, the Court finds that the RH
Law, consistent with the Constitution, recognizes that the fertilized ovum already
has life and that the State has a bounden duty to protect it. The conclusion becomes
clear because the RH Law, first, prohibits any drug or device that induces abortion
(first kind), which, as discussed exhaustively above, refers to that which induces the
killing or the destruction of the fertilized ovum, and, second, prohibits any drug or
device the fertilized ovum to reach and be implanted in the mother's womb (third
kind).

By expressly declaring that any drug or device that prevents the fertilized ovum to
reach and be implanted in the mother's womb is an abortifacient (third kind), the
RH Law does not intend to mean at all that life only begins only at implantation, as
Hon. Lagman suggests. It also does not declare either that protection will only be
given upon implantation, as the petitioners likewise suggest. Rather, it recognizes
that: one, there is a need to protect the fertilized ovum which already has life, and
two, the fertilized ovum must be protected the moment it becomes existent - all the
way until it reaches and implants in the mother's womb. After all, if life is only
recognized and afforded protection from the moment the fertilized ovum implants -
there is nothing to prevent any drug or device from killing or destroying the
fertilized ovum prior to implantation.

From the foregoing, the Court finds that inasmuch as it affords protection to the
fertilized ovum, the RH Law does not sanction abortion. To repeat, it is the Court's
position that life begins at fertilization, not at implantation. When a fertilized ovum
is implanted in the uterine wall , its viability is sustained but that instance of
implantation is not the point of beginning of life. It started earlier. And as defined
by the RH Law, any drug or device that induces abortion, that is, which kills or
destroys the fertilized ovum or prevents the fertilized ovum to reach and be
implanted in the mother's womb, is an abortifacient.

Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso under Section 9 of the law
that "any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient" as empty as it is absurd. The
FDA, with all its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in every instance when
the contraceptive product or supply will be used.171

Pursuant to its declared policy of providing access only to safe, legal and non-
abortifacient contraceptives, however, the Court finds that the proviso of Section 9,
as worded, should bend to the legislative intent and mean that "any product or
supply included or to be included in the EDL must have a certification from the FDA
that said product and supply is made available on the condition that it cannot be
used as abortifacient." Such a construction is consistent with the proviso under the
second paragraph of the same section that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any
means emergency contraceptive pills, postcoital pills, abortifacients that will be
used for such purpose and their other forms or equivalent.

Abortifacients under the RH-IRR

At this juncture, the Court agrees with ALFI that the authors of the RH-IRR
gravely abused their office when they redefined the meaning of abortifacient. The
RH Law defines "abortifacient" as follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall
be defined as follows:

(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of the
FDA.

Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of the
Food and Drug Administration (FDA). [Emphasis supplied]

Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern
family planning method, device, or health product, whether natural or artificial,
that prevents pregnancy but does not primarily destroy a fertilized ovum or prevent
a fertilized ovum from being implanted in the mother's womb in doses of its
approved indication as determined by the Food and Drug Administration (FDA).

The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes

as "abortifacient" only those that primarily induce abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb.172

This cannot be done.

In this regard, the observations of Justice Brion and Justice Del Castillo are well
taken. As they pointed out, with the insertion of the word "primarily," Section 3.0l(a)
and G) of the RH-IRR173 must be struck down for being ultra vires.

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the
RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH Law and should,
therefore, be declared invalid. There is danger that the insertion of the qualifier
"primarily" will pave the way for the approval of contraceptives which may harm or
destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution. With such qualification in the RH-IRR, it appears to
insinuate that a contraceptive will only be considered as an "abortifacient" if its sole
known effect is abortion or, as pertinent here, the prevention of the implantation of
the fertilized ovum.

For the same reason, this definition of "contraceptive" would permit the approval of
contraceptives which are actually abortifacients because of their fail-safe
mechanism.174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these
contraceptives cannot act as abortive. With this, together with the definition of an
abortifacient under Section 4 (a) of the RH Law and its declared policy against
abortion, the undeniable conclusion is that contraceptives to be included in the
PNDFS and the EDL will not only be those contraceptives that do not have the
primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the
mother's womb, but also those that do not have the secondary action of acting the
same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line
with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily" in
Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity
of Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that
have the primary effect of being an abortive would effectively "open the floodgates to
the approval of contraceptives which may harm or destroy the life of the unborn
from conception/fertilization in violation of Article II, Section 12 of the
Constitution."175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the
constitutional protection of life must be upheld.

2-The Right to Health

The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices, injectables
and family products and supplies in the National Drug Formulary and the inclusion
of the same in the regular purchase of essential medicines and supplies of all
national hospitals.176 Citing various studies on the matter, the petitioners posit that
the risk of developing breast and cervical cancer is greatly increased in women who
use oral contraceptives as compared to women who never use them. They point out
that the risk is decreased when the use of contraceptives is discontinued. Further, it
is contended that the use of combined oral contraceptive pills is associated with a
threefold increased risk of venous thromboembolism, a twofold increased risk of
ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual health" under
Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed
legislation only seeks to ensure that women have pleasurable and satisfying sex
lives.180

The OSG, however, points out that Section 15, Article II of the Constitution is not
self-executory, it being a mere statement of the administration's principle and
policy. Even if it were self-executory, the OSG posits that medical authorities refute
the claim that contraceptive pose a danger to the health of women.181
The Court's Position

A component to the right to life is the constitutional right to health. In this regard,
the Constitution is replete with provisions protecting and promoting the right to
health. Section 15, Article II of the Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

A portion of Article XIII also specifically provides for the States' duty to provide for
the health of the people, viz:

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and other
social services available to all the people at affordable cost. There shall be priority
for the needs of the underprivileged, sick, elderly, disabled, women, and children.
The State shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower development, and
research, responsive to the country's health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their
rehabilitation, self-development, and self-reliance, and their integration into the
mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.

Contrary to the respondent's notion, however, these provisions are self-executing.

Unless the provisions clearly express the contrary, the provisions of the Constitution
should be considered self-executory. There is no need for legislation to implement
these self-executing provisions.182 In Manila Prince Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all provisions of the
constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power
to ignore and practically nullify the mandate of the fundamental law. This can be
cataclysmic. That is why the prevailing view is, as it has always been, that

... in case of doubt, the Constitution should be considered self-executing rather than
non-self-executing. . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed
implementing statute. (Emphases supplied)

This notwithstanding, it bears mentioning that the petitioners, particularly ALFI,

do not question contraception and contraceptives per se. 184 In fact, ALFI prays that
the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and distribution of
contraceptives are not prohibited when they are dispensed by a prescription of a
duly licensed by a physician - be maintained.185

The legislative intent in the enactment of the RH Law in this regard is to leave
intact the provisions of R.A. No. 4729. There is no intention at all to do away with it.
It is still a good law and its requirements are still in to be complied with. Thus, the
Court agrees with the observation of respondent Lagman that the effectivity of the
RH Law will not lead to the unmitigated proliferation of contraceptives since the
sale, distribution and dispensation of contraceptive drugs and devices will still
require the prescription of a licensed physician. With R.A. No. 4729 in place, there
exists adequate safeguards to ensure the public that only contraceptives that are
safe are made available to the public. As aptly explained by respondent Lagman:

D. Contraceptives cannot be
dispensed and used without
prescription

108. As an added protection to voluntary users of contraceptives, the same cannot be

dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or
Distribution of Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An
Act Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical
Education in the Philippines and for Other Purposes" are not repealed by the RH
Law and the provisions of said Acts are not inconsistent with the RH Law.

110. Consequently, the sale, distribution and dispensation of contraceptive drugs

and devices are particularly governed by RA No. 4729 which provides in full:

"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell,

dispense or otherwise distribute whether for or without consideration, any
contraceptive drug or device, unless such sale, dispensation or distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a
qualified medical practitioner.

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is

used exclusively for the purpose of preventing fertilization of the female
ovum: and

"(b) "Contraceptive device" is any instrument, device, material, or agent

introduced into the female reproductive system for the primary purpose of
preventing conception.

"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act
shall be punished with a fine of not more than five hundred pesos or an
imprisonment of not less than six months or more than one year or both in the
discretion of the Court.

"This Act shall take effect upon its approval.

"Approved: June 18, 1966"

111. Of the same import, but in a general manner, Section 25 of RA No. 5921
provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,
pharmaceutical, or drug of whatever nature and kind or device shall be
compounded, dispensed, sold or resold, or otherwise be made available to the
consuming public except through a prescription drugstore or hospital pharmacy,
duly established in accordance with the provisions of this Act.

112. With all of the foregoing safeguards, as provided for in the RH Law and other
relevant statutes, the pretension of the petitioners that the RH Law will lead to the
unmitigated proliferation of contraceptives, whether harmful or not, is completely
unwarranted and baseless.186 [Emphases in the Original. Underlining supplied.]

In Re: Section 10 of the RH Law:

The foregoing safeguards should be read in connection with Section 10 of the RH

Law which provides:

SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH
shall procure, distribute to LGUs and monitor the usage of family planning supplies
for the whole country. The DOH shall coordinate with all appropriate local
government bodies to plan and implement this procurement and distribution
program. The supply and budget allotments shall be based on, among others, the
current levels and projections of the following:

(a) Number of women of reproductive age and couples who want to space or
limit their children;

(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.

Thus, in the distribution by the DOH of contraceptive drugs and devices, it must
consider the provisions of R.A. No. 4729, which is still in effect, and ensure that the
contraceptives that it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of these contraceptive
drugs and devices will done following a prescription of a qualified medical
practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means.
As pointed out by Justice De Castro, a heavy responsibility and burden are assumed
by the government in supplying contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting from or incidental to their
use.187

At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await its
determination which drugs or devices are declared by the FDA as safe, it being the
agency tasked to ensure that food and medicines available to the public are safe for
public consumption. Consequently, the Court finds that, at this point, the attack on
the RH Law on this ground is premature. Indeed, the various kinds of
contraceptives must first be measured up to the constitutional yardstick as
expounded herein, to be determined as the case presents itself.

At this point, the Court is of the strong view that Congress cannot legislate that
hormonal contraceptives and intra-uterine devices are safe and non-abortifacient.
The first sentence of Section 9 that ordains their inclusion by the National Drug
Formulary in the EDL by using the mandatory "shall" is to be construed as
operative only after they have been tested, evaluated, and approved by the FDA. The
FDA, not Congress, has the expertise to determine whether a particular hormonal
contraceptive or intrauterine device is safe and non-abortifacient. The provision of
the third sentence concerning the requirements for the inclusion or removal of a
particular family planning supply from the EDL supports this construction.

Stated differently, the provision in Section 9 covering the inclusion of hormonal

contraceptives, intra-uterine devices, injectables, and other safe, legal, non-
abortifacient and effective family planning products and supplies by the National
Drug Formulary in the EDL is not mandatory. There must first be a determination
by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that
the gamut of contraceptives are "safe, legal, non-abortifacient and effective" without
the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech

Position of the Petitioners:

1. On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not
covered by the constitutional proscription, there are those who, because of their
religious education and background, sincerely believe that contraceptives, whether
abortifacient or not, are evil. Some of these are medical practitioners who
essentially claim that their beliefs prohibit not only the use of contraceptives but
also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely opposed
to marital chastity, it is contrary to the good of the transmission of life, and to the
reciprocal self-giving of the spouses; it harms true love and denies the sovereign
rule of God in the transmission of Human life."188

The petitioners question the State-sponsored procurement of contraceptives,

arguing that the expenditure of their taxes on contraceptives violates the guarantee
of religious freedom since contraceptives contravene their religious beliefs.189

2. On Religious Accommodation and

The Duty to Refer

Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also imposes upon
the conscientious objector the duty to refer the patient seeking reproductive health
services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious
objector to cooperate with the very thing he refuses to do without violating his/her
religious beliefs.190

They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the
conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health facilities referred
to in Section 7; b) public officers involved in the implementation of the law referred
to in Section 23(b ); and c) teachers in public schools referred to in Section 14 of the
RH Law, are also not recognize.191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the
requirement to refer the matter to another health care service provider is still
considered a compulsion on those objecting healthcare service providers. They add
that compelling them to do the act against their will violates the Doctrine of
Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that they
tend to disregard the religion of Filipinos. Authorizing the use of contraceptives
with abortive effects, mandatory sex education, mandatory pro-bono reproductive
health services to indigents encroach upon the religious freedom of those upon
whom they are required.192

Petitioner CFC also argues that the requirement for a conscientious objector to refer
the person seeking reproductive health care services to another provider infringes
on one's freedom of religion as it forces the objector to become an unwilling
participant in the commission of a serious sin under Catholic teachings. While the
right to act on one's belief may be regulated by the State, the acts prohibited by the
RH Law are passive acts which produce neither harm nor injury to the public. 193

Petitioner CFC adds that the RH Law does not show compelling state interest to
justify regulation of religious freedom because it mentions no emergency, risk or
threat that endangers state interests. It does not explain how the rights of the
people (to equality, non-discrimination of rights, sustainable human development,
health, education, information, choice and to make decisions according to religious
convictions, ethics, cultural beliefs and the demands of responsible parenthood) are
being threatened or are not being met as to justify the impairment of religious
freedom.194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be
couples to attend family planning and responsible parenthood seminars and to
obtain a certificate of compliance. They claim that the provision forces individuals to
participate in the implementation of the RH Law even if it contravenes their
religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or
imprisonment in case of non-compliance with its provisions, the petitioners claim
that the RH Law forcing them to provide, support and facilitate access and
information to contraception against their beliefs must be struck down as it runs
afoul to the constitutional guarantee of religious freedom.

The Respondents' Positions

The respondents, on the other hand, contend that the RH Law does not provide that
a specific mode or type of contraceptives be used, be it natural or artificial. It neither
imposes nor sanctions any religion or belief.196 They point out that the RH Law only
seeks to serve the public interest by providing accessible, effective and quality
reproductive health services to ensure maternal and child health, in line with the
State's duty to bring to reality the social justice health guarantees of the
Constitution,197 and that what the law only prohibits are those acts or practices,
which deprive others of their right to reproductive health. 198 They assert that the
assailed law only seeks to guarantee informed choice, which is an assurance that no
one will be compelled to violate his religion against his free will. 199

The respondents add that by asserting that only natural family planning should be
allowed, the petitioners are effectively going against the constitutional right to
religious freedom, the same right they invoked to assail the constitutionality of the
RH Law.200 In other words, by seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court recognize only the
Catholic Church's sanctioned natural family planning methods and impose this on
the entire citizenry.201

With respect to the duty to refer, the respondents insist that the same does not
violate the constitutional guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the religious objector, on one hand,
who is allowed to keep silent but is required to refer -and that of the citizen who
needs access to information and who has the right to expect that the health care
professional in front of her will act professionally. For the respondents, the
concession given by the State under Section 7 and 23(a)(3) is sufficient
accommodation to the right to freely exercise one's religion without unnecessarily
infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the
duty to refer is limited in duration, location and impact.203

Regarding mandatory family planning seminars under Section 15 , the respondents

claim that it is a reasonable regulation providing an opportunity for would-be
couples to have access to information regarding parenthood, family planning,
breastfeeding and infant nutrition. It is argued that those who object to any
information received on account of their attendance in the required seminars are
not compelled to accept information given to them. They are completely free to reject
any information they do not agree with and retain the freedom to decide on matters
of family life without intervention of the State.204

For their part, respondents De Venecia et al., dispute the notion that natural family
planning is the only method acceptable to Catholics and the Catholic hierarchy.
Citing various studies and surveys on the matter, they highlight the changing stand
of the Catholic Church on contraception throughout the years and note the general
acceptance of the benefits of contraceptives by its followers in planning their
families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It is

made up of people of diverse ethnic, cultural and religious beliefs and backgrounds.
History has shown us that our government, in law and in practice, has allowed
these various religious, cultural, social and racial groups to thrive in a single society
together. It has embraced minority groups and is tolerant towards all - the religious
people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to whom
they call for guidance and enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to
build a just and humane society, and establish a Government that shall embody our
ideals and aspirations, promote the common good, conserve and develop our
patrimony, and secure to ourselves and our posterity, the blessings of independence
and democracy under the rule of law and a regime of truth, justice, freedom, love,
equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by tradition
and historical experience. As this is embodied in the preamble, it means that the
State recognizes with respect the influence of religion in so far as it instills into the
mind the purest principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain
benevolent and accommodating provisions towards religions such as tax exemption
of church property, salary of religious officers in government institutions, and
optional religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the State
would not encroach into the affairs of the church, and vice-versa. The principle of
separation of Church and State was, thus, enshrined in Article II, Section 6 of the
1987 Constitution, viz:

Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual

respect.1wphi1 Generally, the State cannot meddle in the internal affairs of the
church, much less question its faith and dogmas or dictate upon it. It cannot favor
one religion and discriminate against another. On the other hand, the church cannot
impose its beliefs and convictions on the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it sincerely believes that they are
good for the country.

Consistent with the principle that not any one religion should ever be preferred over
another, the Constitution in the above-cited provision utilizes the term "church" in
its generic sense, which refers to a temple, a mosque, an iglesia, or any other house
of God which metaphorically symbolizes a religious organization. Thus, the
"Church" means the religious congregations collectively.

Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and Article
VI, Section 29 (2), of the 1987 Constitution:

Section. 5. No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.

Section 29.

xxx.

No public money or property shall be appropriated, applied, paid, or employed,

directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest, preacher,
minister, other religious teacher, or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.

In short, the constitutional assurance of religious freedom provides two guarantees:

the Establishment Clause and the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions. It mandates a strict
neutrality in affairs among religious groups." 206 Essentially, it prohibits the
establishment of a state religion and the use of public resources for the support or
prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith. 208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:

The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion by
law of the acceptance of any creed or the practice of any form of worship (U.S.
Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's
chosen form of religion within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the
liberty of others and with the common good. Any legislation whose effect or purpose
is to impede the observance of one or all religions, or to discriminate invidiously
between the religions, is invalid, even though the burden may be characterized as
being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its power, a general law
which has for its purpose and effect to advance the state's secular goals, the statute
is valid despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366
U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5
and 449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of individual
religious beliefs and practices. In simplest terms, the free exercise clause prohibits
government from inhibiting religious beliefs with penalties for religious beliefs and
practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the
two religion clauses were intended to deny government the power to use either the
carrot or the stick to influence individual religious beliefs and practices.210

Corollary to the guarantee of free exercise of one's religion is the principle that the
guarantee of religious freedom is comprised of two parts: the freedom to believe, and
the freedom to act on one's belief. The first part is absolute. As explained in Gerona
v. Secretary of Education:211

The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however strange,
bizarre and unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel. 212

The second part however, is limited and subject to the awesome power of the State
and can be enjoyed only with proper regard to the rights of others. It is "subject to
regulation where the belief is translated into external acts that affect the public
welfare."213
Legislative Acts and the

Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court
adheres to the doctrine of benevolent neutrality. This has been clearly decided by
the Court in Estrada v. Escritor, (Escritor) 214 where it was stated "that benevolent
neutrality-accommodation, whether mandatory or permissive, is the spirit, intent
and framework underlying the Philippine Constitution." 215 In the same case, it was
further explained that"

The benevolent neutrality theory believes that with respect to these governmental
actions, accommodation of religion may be allowed, not to promote the government's
favored form of religion, but to allow individuals and groups to exercise their
religion without hindrance. "The purpose of accommodation is to remove a burden
on, or facilitate the exercise of, a person's or institution's religion." 216 "What is
sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application
or its 'burdensome effect,' whether by the legislature or the courts."217

In ascertaining the limits of the exercise of religious freedom, the compelling state
interest test is proper.218Underlying the compelling state interest test is the notion
that free exercise is a fundamental right and that laws burdening it should be
subject to strict scrutiny.219 In Escritor, it was written:

Philippine jurisprudence articulates several tests to determine these limits.

Beginning with the first case on the Free Exercise Clause, American Bible Society,
the Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of religious freedom
is whether it violates the established institutions of society and law. The Victoriano
case mentioned the "immediate and grave danger" test as well as the doctrine that a
law of general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano , German went
back to the Gerona rule. Ebralinag then employed the "grave and immediate
danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni
Cristo went back to the " clear and present danger" test in the maiden case of A
merican Bible Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in one form or
another, religious speech as this test is often used in cases on freedom of expression.
On the other hand, the Gerona and German cases set the rule that religious
freedom will not prevail over established institutions of society and law. Gerona,
however, which was the authority cited by German has been overruled by Ebralinag
which employed the "grave and immediate danger" test . Victoriano was the only
case that employed the "compelling state interest" test, but as explained previously,
the use of the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in A merican Bible Society, Ebralinag and
Iglesia ni Cristo where the "clear and present danger" and "grave and immediate
danger" tests were appropriate as speech has easily discernible or immediate effects.
The Gerona and German doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising
from religious belief. The "compelling state interest" test is proper where conduct is
involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary. However, not
any interest of the state would suffice to prevail over the right to religious freedom
as this is a fundamental right that enjoys a preferred position in the hierarchy of
rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an
appeal to a higher sovereignty. The entire constitutional order of limited
government is premised upon an acknowledgment of such higher sovereignty, thus
the Filipinos implore the "aid of Almighty God in order to build a just and humane
society and establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail
over the fundamental right to religious liberty. The test requires the state to carry a
heavy burden, a compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are destroyed. In determining
which shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very state,
without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether
the use of contraceptives or one's participation in the support of modem
reproductive health measures is moral from a religious standpoint or whether the
same is right or wrong according to one's dogma or belief. For the Court has
declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical
matters which are outside the province of the civil courts." 220 The jurisdiction of the
Court extends only to public and secular morality. Whatever pronouncement the
Court makes in the case at bench should be understood only in this realm where it
has authority. Stated otherwise, while the Court stands without authority to rule on
ecclesiastical matters, as vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee of religious freedom.

At first blush, it appears that the RH Law recognizes and respects religion and
religious beliefs and convictions. It is replete with assurances the no one can be
compelled to violate the tenets of his religion or defy his religious convictions
against his free will. Provisions in the RH Law respecting religious freedom are the
following:

1. The State recognizes and guarantees the human rights of all persons including
their right to equality and nondiscrimination of these rights, the right to
sustainable human development, the right to health which includes reproductive
health, the right to education and information, and the right to choose and make
decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2, Declaration
of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation. Pursuant
thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2, Declaration of
Policy]

3. The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modern methods which
have been proven medically safe, legal, non-abortifacient, and effective in accordance
with scientific and evidence-based medical research standards such as those
registered and approved by the FDA for the poor and marginalized as identified
through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to
promote modern natural methods of family planning, especially the Billings
Ovulation Method, consistent with the needs of acceptors and their religious
convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have
the number of children they desire with due consideration to the health, particularly
of women, and the resources available and affordable to them and in accordance
with existing laws, public morals and their religious convictions. [Section 3CDJ

5. The State shall respect individuals' preferences and choice of family planning
methods that are in accordance with their religious convictions and cultural beliefs,
taking into consideration the State's obligations under various human rights
instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and

people's organizations, civil society, faith-based organizations, the religious sector
and communities is crucial to ensure that reproductive health and population and
development policies, plans, and programs will address the priority needs of women,
the poor, and the marginalized. [Section 3(i)]

7. Responsible parenthood refers to the will and ability of a parent to respond to the
needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number of
children, spacing and timing of their children according to their own family life
aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions.
[Section 4(v)] (Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use of
contraceptives. To some medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the principle of benevolent
neutrality, their beliefs should be respected.

The Establishment Clause

and Contraceptives

In the same breath that the establishment clause restricts what the government can
do with religion, it also limits what religious sects can or cannot do with the
government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to restrict
other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State
cannot enhance its population control program through the RH Law simply because
the promotion of contraceptive use is contrary to their religious beliefs. Indeed, the
State is not precluded to pursue its legitimate secular objectives without being
dictated upon by the policies of any one religion. One cannot refuse to pay his taxes
simply because it will cloud his conscience. The demarcation line between Church
and State demands that one render unto Caesar the things that are Caesar's and
unto God the things that are God's.221

The Free Exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote reproductive health

manifestly respects diverse religious beliefs in line with the Non-Establishment
Clause, the same conclusion cannot be reached with respect to Sections 7, 23 and 24
thereof. The said provisions commonly mandate that a hospital or a medical
practitioner to immediately refer a person seeking health care and services under
the law to another accessible healthcare provider despite their conscientious
objections based on religious or ethical beliefs.

In a situation where the free exercise of religion is allegedly burdened by

government legislation or practice, the compelling state interest test in line with the
Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious objector's claim to religious freedom
would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of
conscientious objectors for exemption from the RH Law deserves no less than strict
scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to
religious freedom has been burdened. As in Escritor, there is no doubt that an
intense tug-of-war plagues a conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his religious beliefs, while the other
entices him to a clean conscience yet under the pain of penalty. The scenario is an
illustration of the predicament of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.

The Court is of the view that the obligation to refer imposed by the RH Law violates
the religious belief and conviction of a conscientious objector. Once the medical
practitioner, against his will, refers a patient seeking information on modem
reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his
beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written,
"at the basis of the free exercise clause is the respect for the inviolability of the
human conscience.222

Though it has been said that the act of referral is an opt-out clause, it is, however, a
false compromise because it makes pro-life health providers complicit in the
performance of an act that they find morally repugnant or offensive. They cannot, in
conscience, do indirectly what they cannot do directly. One may not be the principal,
but he is equally guilty if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the
right to free speech, it being an externalization of one's thought and conscience.
This in turn includes the right to be silent. With the constitutional guarantee of
religious freedom follows the protection that should be afforded to individuals in
communicating their beliefs to others as well as the protection for simply being
silent. The Bill of Rights guarantees the liberty of the individual to utter what is in
his mind and the liberty not to utter what is not in his mind. 223 While the RH Law
seeks to provide freedom of choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one's religion.224

In case of conflict between the religious beliefs and moral convictions of individuals,
on one hand, and the interest of the State, on the other, to provide access and
information on reproductive health products, services, procedures and methods to
enable the people to determine the timing, number and spacing of the birth of their
children, the Court is of the strong view that the religious freedom of health
providers, whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of the
RH Law. If he would be compelled to act contrary to his religious belief and
conviction, it would be violative of "the principle of non-coercion" enshrined in the
constitutional right to free exercise of religion.

Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session,
found in the case of Doogan and Wood v. NHS Greater Glasgow and Clyde Health
Board,225 that the midwives claiming to be conscientious objectors under the
provisions of Scotland's Abortion Act of 1967, could not be required to delegate,
supervise or support staff on their labor ward who were involved in abortions. 226 The
Inner House stated "that if 'participation' were defined according to whether the
person was taking part 'directly' or ' indirectly' this would actually mean more
complexity and uncertainty."227

While the said case did not cover the act of referral, the applicable principle was the
same - they could not be forced to assist abortions if it would be against their
conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and hospitals
owned and operated by a religious group and health care service providers.
Considering that Section 24 of the RH Law penalizes such institutions should they
fail or refuse to comply with their duty to refer under Section 7 and Section 23(a)(3),
the Court deems that it must be struck down for being violative of the freedom of
religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and
services and in the performance of reproductive health procedures, the religious
freedom of health care service providers should be respected.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:

Freedom of religion was accorded preferred status by the framers of our

fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of conscience,
to allow each man to believe as his conscience directs, to profess his beliefs, and to
live as he believes he ought to live, consistent with the liberty of others and with the
common good."10

The Court is not oblivious to the view that penalties provided by law endeavour to
ensure compliance. Without set consequences for either an active violation or mere
inaction, a law tends to be toothless and ineffectual. Nonetheless, when what is
bartered for an effective implementation of a law is a constitutionally-protected
right the Court firmly chooses to stamp its disapproval. The punishment of a
healthcare service provider, who fails and/or refuses to refer a patient to another, or
who declines to perform reproductive health procedure on a patient because
incompatible religious beliefs, is a clear inhibition of a constitutional guarantee
which the Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or municipal

health officers, chiefs of hospital, head nurses, supervising midwives, among others,
who by virtue of their office are specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be considered as conscientious
objectors.

This is discriminatory and violative of the equal protection clause. The

conscientious objection clause should be equally protective of the religious belief of
public health officers. There is no perceptible distinction why they should not be
considered exempt from the mandates of the law. The protection accorded to other
conscientious objectors should equally apply to all medical practitioners without
distinction whether they belong to the public or private sector. After all, the freedom
to believe is intrinsic in every individual and the protective robe that guarantees its
free exercise is not taken off even if one acquires employment in the government.

It should be stressed that intellectual liberty occupies a place inferior to none in the
hierarchy of human values. The mind must be free to think what it wills, whether in
the secular or religious sphere, to give expression to its beliefs by oral discourse or
through the media and, thus, seek other candid views in occasions or gatherings or
in more permanent aggrupation. Embraced in such concept then are freedom of
religion, freedom of speech, of the press, assembly and petition, and freedom of
association.229

The discriminatory provision is void not only because no such exception is stated in
the RH Law itself but also because it is violative of the equal protection clause in
the Constitution. Quoting respondent Lagman, if there is any conflict between the
RH-IRR and the RH Law, the law must prevail.

Justice Mendoza:

I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52,
you mentioned RH Law is replete with provisions in upholding the freedom of
religion and respecting religious convictions. Earlier, you affirmed this with
qualifications. Now, you have read, I presumed you have read the IRR-Implementing
Rules and Regulations of the RH Bill?

Congressman Lagman:

Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not
thoroughly dissected the nuances of the provisions.
Justice Mendoza:

I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law.
But in the IRR it says: " .... skilled health professionals such as provincial, city or
municipal health officers, chief of hospitals, head nurses, supervising midwives,
among others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be considered as
conscientious objectors." Do you agree with this?

Congressman Lagman:

I will have to go over again the provisions, Your Honor.

Justice Mendoza:

In other words, public health officers in contrast to the private practitioners who can
be conscientious objectors, skilled health professionals cannot be considered
conscientious objectors. Do you agree with this? Is this not against the
constitutional right to the religious belief?

Congressman Lagman:

Your Honor, if there is any conflict between the IRR and the law, the law must
prevail.230

Compelling State Interest

The foregoing discussion then begets the question on whether the respondents, in
defense of the subject provisions, were able to: 1] demonstrate a more compelling
state interest to restrain conscientious objectors in their choice of services to render;
and 2] discharge the burden of proof that the obligatory character of the law is the
least intrusive means to achieve the objectives of the law.

Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain.

The OSG was curiously silent in the establishment of a more compelling state
interest that would rationalize the curbing of a conscientious objector's right not to
adhere to an action contrary to his religious convictions. During the oral arguments,
the OSG maintained the same silence and evasion. The Transcripts of the
Stenographic Notes disclose the following:

Justice De Castro:

Let's go back to the duty of the conscientious objector to refer. ..

Senior State Solicitor Hilbay:

Yes, Justice.

Justice De Castro:

... which you are discussing awhile ago with Justice Abad. What is the compelling
State interest in imposing this duty to refer to a conscientious objector which
refuses to do so because of his religious belief?

Senior State Solicitor Hilbay:

Ahh, Your Honor, ..

Justice De Castro:

What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:

In the first place, Your Honor, I don't believe that the standard is a compelling State
interest, this is an ordinary health legislation involving professionals. This is not a
free speech matter or a pure free exercise matter. This is a regulation by the State of
the relationship between medical doctors and their patients.231

Resultantly, the Court finds no compelling state interest which would limit the free
exercise clause of the conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. If the government fails
to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the
freedom to act or not to act according to what one believes. And this freedom is
violated when one is compelled to act against one's belief or is prevented from acting
according to one's belief.233

Apparently, in these cases, there is no immediate danger to the life or health of an

individual in the perceived scenario of the subject provisions. After all, a couple who
plans the timing, number and spacing of the birth of their children refers to a future
event that is contingent on whether or not the mother decides to adopt or use the
information, product, method or supply given to her or whether she even decides to
become pregnant at all. On the other hand, the burden placed upon those who object
to contraceptive use is immediate and occurs the moment a patient seeks
consultation on reproductive health matters.

Moreover, granting that a compelling interest exists to justify the infringement of

the conscientious objector's religious freedom, the respondents have failed to
demonstrate "the gravest abuses, endangering paramount interests" which could
limit or override a person's fundamental right to religious freedom. Also, the
respondents have not presented any government effort exerted to show that the
means it takes to achieve its legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring would only be
momentary, considering that the act of referral by a conscientious objector is the
very action being contested as violative of religious freedom, it behooves the
respondents to demonstrate that no other means can be undertaken by the State to
achieve its objective without violating the rights of the conscientious objector. The
health concerns of women may still be addressed by other practitioners who may
perform reproductive health-related procedures with open willingness and
motivation. Suffice it to say, a person who is forced to perform an act in utter
reluctance deserves the protection of the Court as the last vanguard of
constitutional freedoms.

At any rate, there are other secular steps already taken by the Legislature to ensure
that the right to health is protected. Considering other legislations as they stand
now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The Population Act
of the Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of
Women," amply cater to the needs of women in relation to health services and
programs. The pertinent provision of Magna Carta on comprehensive health
services and programs for women, in fact, reads:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The
State shall, at all times, provide for a comprehensive, culture-sensitive, and gender-
responsive health services and programs covering all stages of a woman's life cycle
and which addresses the major causes of women's mortality and morbidity:
Provided, That in the provision for comprehensive health services, due respect shall
be accorded to women's religious convictions, the rights of the spouses to found a
family in accordance with their religious convictions, and the demands of
responsible parenthood, and the right of women to protection from hazardous drugs,
devices, interventions, and substances.

Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to address

pregnancy and infant health and nutrition;

(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods of family

planning;

(4) Family and State collaboration in youth sexuality education and

health services without prejudice to the primary right and duty of
parents to educate their children;

(5) Prevention and management of reproductive tract infections,

including sexually transmitted diseases, HIV, and AIDS;

(6) Prevention and management of reproductive tract cancers like

breast and cervical cancers, and other gynecological conditions and
disorders;

(7) Prevention of abortion and management of pregnancy-related

complications;
 (8) In cases of violence against women and children, women and
children victims and survivors shall be provided with comprehensive
health services that include psychosocial, therapeutic, medical, and
legal interventions and assistance towards healing, recovery, and
empowerment;

(9) Prevention and management of infertility and sexual dysfunction

pursuant to ethical norms and medical standards;

(10) Care of the elderly women beyond their child-bearing years; and

(11) Management, treatment, and intervention of mental health

problems of women and girls. In addition, healthy lifestyle activities
are encouraged and promoted through programs and projects as
strategies in the prevention of diseases.

(b) Comprehensive Health Information and Education. - The State shall provide
women in all sectors with appropriate, timely, complete, and accurate information
and education on all the above-stated aspects of women's health in government
education and training programs, with due regard to the following:

(1) The natural and primary right and duty of parents in the rearing of
the youth and the development of moral character and the right of
children to be brought up in an atmosphere of morality and rectitude
for the enrichment and strengthening of character;

(2) The formation of a person's sexuality that affirms human dignity;

and

(3) Ethical, legal, safe, and effective family planning methods including
fertility awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the

compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x." 235 He, however, failed to
substantiate this point by concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that
the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such revelation,
the proponents still insist that such number of maternal deaths constitute a
compelling state interest.

Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a measure that
puts an unwarrantable stranglehold on religious beliefs in exchange for blind
conformity.

Exception: Life Threatening Cases

All this notwithstanding, the Court properly recognizes a valid exception set forth in
the law. While generally healthcare service providers cannot be forced to render
reproductive health care procedures if doing it would contravene their religious
beliefs, an exception must be made in life-threatening cases that require the
performance of emergency procedures. In these situations, the right to life of the
mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing
the life of a mother in grave danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause that we are objecting on
grounds of violation of freedom of religion does not contemplate an emergency." 237

In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is impossible,
the resulting death to one should not be deliberate. Atty. Noche explained:

Principle of Double-Effect. - May we please remind the principal author of the RH

Bill in the House of Representatives of the principle of double-effect wherein
intentional harm on the life of either the mother of the child is never justified to
bring about a "good" effect. In a conflict situation between the life of the child and
the life of the mother, the doctor is morally obliged always to try to save both lives.
However, he can act in favor of one (not necessarily the mother) when it is medically
impossible to save both, provided that no direct harm is intended to the other. If the
above principles are observed, the loss of the child's life or the mother's life is not
intentional and, therefore, unavoidable. Hence, the doctor would not be guilty of
abortion or murder. The mother is never pitted against the child because both their
lives are equally valuable.238

Accordingly, if it is necessary to save the life of a mother, procedures endangering

the life of the child may be resorted to even if is against the religious sentiments of
the medical practitioner. As quoted above, whatever burden imposed upon a medical
practitioner in this case would have been more than justified considering the life he
would be able to save.

Family Planning Seminars

Anent the requirement imposed under Section 15 239 as a condition for the issuance
of a marriage license, the Court finds the same to be a reasonable exercise of police
power by the government. A cursory reading of the assailed provision bares that the
religious freedom of the petitioners is not at all violated. All the law requires is for
would-be spouses to attend a seminar on parenthood, family planning breastfeeding
and infant nutrition. It does not even mandate the type of family planning methods
to be included in the seminar, whether they be natural or artificial. As correctly
noted by the OSG, those who receive any information during their attendance in the
required seminars are not compelled to accept the information given to them, are
completely free to reject the information they find unacceptable, and retain the
freedom to decide on matters of family life without the intervention of the State.

4-The Family and the Right to Privacy

Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the
provisions of the Constitution by intruding into marital privacy and autonomy. It
argues that it cultivates disunity and fosters animosity in the family rather than
promote its solidarity and total development.240

The Court cannot but agree.

The 1987 Constitution is replete with provisions strengthening the family as it is

the basic social institution. In fact, one article, Article XV, is devoted entirely to the
family.

ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the

family and shall be protected by the State.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with their religious convictions
and the demands of responsible parenthood;

The right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development;

The right of the family to a family living wage and income; and

The right of families or family assoc1at1ons to participate in the planning and

implementation of policies and programs that affect them.

In this case, the RH Law, in its not-so-hidden desire to control population growth,
contains provisions which tend to wreck the family as a solid social institution. It
bars the husband and/or the father from participating in the decision making
process regarding their common future progeny. It likewise deprives the parents of
their authority over their minor daughter simply because she is already a parent or
had suffered a miscarriage.

The Family and Spousal Consent

Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall: ...

(2) refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall prevail.
[Emphasis supplied]

The above provision refers to reproductive health procedures like tubal litigation
and vasectomy which, by their very nature, should require mutual consent and
decision between the husband and the wife as they affect issues intimately related
to the founding of a family. Section 3, Art. XV of the Constitution espouses that the
State shall defend the "right of the spouses to found a family." One person cannot
found a family. The right, therefore, is shared by both spouses. In the same Section
3, their right "to participate in the planning and implementation of policies and
programs that affect them " is equally recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By

giving absolute authority to the spouse who would undergo a procedure, and barring
the other spouse from participating in the decision would drive a wedge between the
husband and wife, possibly result in bitter animosity, and endanger the marriage
and the family, all for the sake of reducing the population. This would be a marked
departure from the policy of the State to protect marriage as an inviolable social
institution.241

Decision-making involving a reproductive health procedure is a private matter

which belongs to the couple, not just one of them. Any decision they would reach
would affect their future as a family because the size of the family or the number of
their children significantly matters. The decision whether or not to undergo the
procedure belongs exclusively to, and shared by, both spouses as one cohesive unit
as they chart their own destiny. It is a constitutionally guaranteed private right.
Unless it prejudices the State, which has not shown any compelling interest, the
State should see to it that they chart their destiny together as one family.

As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710,

otherwise known as the "Magna Carta for Women," provides that women shall have
equal rights in all matters relating to marriage and family relations, including the
joint decision on the number and spacing of their children. Indeed, responsible
parenthood, as Section 3(v) of the RH Law states, is a shared responsibility between
parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by giving to only one
spouse the absolute authority to decide whether to undergo reproductive health
procedure.242

The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to
privacy was first recognized in Marje v. Mutuc, 243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection." 244 Marje adopted the ruling of the US
Supreme Court in Griswold v. Connecticut,245 where Justice William O. Douglas
wrote:

We deal with a right of privacy older than the Bill of Rights -older than our political
parties, older than our school system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association
for as noble a purpose as any involved in our prior decisions.

Ironically, Griswold invalidated a Connecticut statute which made the use of

contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons. Nevertheless, it
recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in
Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and
substance. Various guarantees create zones of privacy."246

At any rate, in case of conflict between the couple, the courts will decide.

The Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor,
who will be undergoing a procedure, is already a parent or has had a miscarriage.
Section 7 of the RH law provides:

SEC. 7. Access to Family Planning. x x x.

No person shall be denied information and access to family planning services,
whether natural or artificial: Provided, That minors will not be allowed access to
modern methods of family planning without written consent from their parents or
guardian/s except when the minor is already a parent or has had a miscarriage.

There can be no other interpretation of this provision except that when a minor is
already a parent or has had a miscarriage, the parents are excluded from the
decision making process of the minor with regard to family planning. Even if she is
not yet emancipated, the parental authority is already cut off just because there is a
need to tame population growth.

It is precisely in such situations when a minor parent needs the comfort, care,
advice, and guidance of her own parents. The State cannot replace her natural
mother and father when it comes to providing her needs and comfort. To say that
their consent is no longer relevant is clearly anti-family. It does not promote unity in
the family. It is an affront to the constitutional mandate to protect and strengthen
the family as an inviolable social institution.

More alarmingly, it disregards and disobeys the constitutional mandate that "the
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government."247 In this regard, Commissioner Bernas wrote:

The 1987 provision has added the adjective "primary" to modify the right of parents.
It imports the assertion that the right of parents is superior to that of the
State.248 [Emphases supplied]

To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and strongly-
held Filipino tradition of maintaining close family ties and violative of the
recognition that the State affords couples entering into the special contract of
marriage to as one unit in forming the foundation of the family and society.

The State cannot, without a compelling state interest, take over the role of parents
in the care and custody of a minor child, whether or not the latter is already a
parent or has had a miscarriage. Only a compelling state interest can justify a state
substitution of their parental authority.

First Exception: Access to Information

Whether with respect to the minor referred to under the exception provided in the
second paragraph of Section 7 or with respect to the consenting spouse under
Section 23(a)(2)(i), a distinction must be made. There must be a differentiation
between access to information about family planning services, on one hand, and
access to the reproductive health procedures and modern family planning methods
themselves, on the other. Insofar as access to information is concerned, the Court
finds no constitutional objection to the acquisition of information by the minor
referred to under the exception in the second paragraph of Section 7 that would
enable her to take proper care of her own body and that of her unborn child. After
all, Section 12, Article II of the Constitution mandates the State to protect both the
life of the mother as that of the unborn child. Considering that information to
enable a person to make informed decisions is essential in the protection and
maintenance of ones' health, access to such information with respect to reproductive
health must be allowed. In this situation, the fear that parents might be deprived of
their parental control is unfounded because they are not prohibited to exercise
parental guidance and control over their minor child and assist her in deciding
whether to accept or reject the information received.

Second Exception: Life Threatening Cases

As in the case of the conscientious objector, an exception must be made in life-

threatening cases that require the performance of emergency procedures. In such
cases, the life of the minor who has already suffered a miscarriage and that of the
spouse should not be put at grave risk simply for lack of consent. It should be
emphasized that no person should be denied the appropriate medical care urgently
needed to preserve the primordial right, that is, the right to life.

In this connection, the second sentence of Section 23(a)(2)(ii) 249 should be struck
down. By effectively limiting the requirement of parental consent to "only in elective
surgical procedures," it denies the parents their right of parental authority in cases
where what is involved are "non-surgical procedures." Save for the two exceptions
discussed above, and in the case of an abused child as provided in the first sentence
of Section 23(a)(2)(ii), the parents should not be deprived of their constitutional
right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.

5 - Academic Freedom

It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,

mandating the teaching of Age-and Development-Appropriate Reproductive Health
Education under threat of fine and/or imprisonment violates the principle of
academic freedom . According to the petitioners, these provisions effectively force
educational institutions to teach reproductive health education even if they believe
that the same is not suitable to be taught to their students. 250 Citing various studies
conducted in the United States and statistical data gathered in the country, the
petitioners aver that the prevalence of contraceptives has led to an increase of out-
of-wedlock births; divorce and breakdown of families; the acceptance of abortion and
euthanasia; the "feminization of poverty"; the aging of society; and promotion of
promiscuity among the youth.251

At this point, suffice it to state that any attack on the validity of Section 14 of the
RH Law is premature because the Department of Education, Culture and Sports
has yet to formulate a curriculum on age-appropriate reproductive health education.
One can only speculate on the content, manner and medium of instruction that will
be used to educate the adolescents and whether they will contradict the religious
beliefs of the petitioners and validate their apprehensions. Thus, considering the
premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution provides that the natural
and primary right and duty of parents in the rearing of the youth for civic efficiency
and development of moral character shall receive the support of the Government.
Like the 1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms
the State recognition of the invaluable role of parents in preparing the youth to
become productive members of society. Notably, it places more importance on the
role of parents in the development of their children by recognizing that said role
shall be "primary," that is, that the right of parents in upbringing the youth is
superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in
the moral development of the youth. Indeed, the Constitution makes mention of the
importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-appropriate-
reproductive health education, but also for values formation; the development of
knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence and
teen pregnancy; physical, social and emotional changes in adolescents; women's
rights and children's rights; responsible teenage behavior; gender and development;
and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR and
Section 4(t) of the RH Law itself provides for the teaching of responsible teenage
behavior, gender sensitivity and physical and emotional changes among adolescents
- the Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in the
moral development of their children.

Furthermore, as Section 14 also mandates that the mandatory reproductive health

education program shall be developed in conjunction with parent-teacher-
community associations, school officials and other interest groups, it could very well
be said that it will be in line with the religious beliefs of the petitioners. By
imposing such a condition, it becomes apparent that the petitioners' contention that
Section 14 violates Article XV, Section 3(1) of the Constitution is without merit. 254

While the Court notes the possibility that educators might raise their objection to
their participation in the reproductive health education program provided under
Section 14 of the RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case be filed before it.

6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates
the due process clause of the Constitution. According to them, Section 23 (a)(l)
mentions a "private health service provider" among those who may be held
punishable but does not define who is a "private health care service provider." They
argue that confusion further results since Section 7 only makes reference to a
"private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts
hospitals operated by religious groups from rendering reproductive health service
and modern family planning methods. It is unclear, however, if these institutions
are also exempt from giving reproductive health information under Section 23(a)(l),
or from rendering reproductive health procedures under Section 23(a)(2).

Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define "incorrect
information."

The arguments fail to persuade.

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess its meaning and
differ as to its application. It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by
it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.255 Moreover, in determining whether the words used in a
statute are vague, words must not only be taken in accordance with their plain
meaning alone, but also in relation to other parts of the statute. It is a rule that
every part of the statute must be interpreted with reference to the context, that is,
every part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment. 256

As correctly noted by the OSG, in determining the definition of "private health care
service provider," reference must be made to Section 4(n) of the RH Law which
defines a "public health service provider," viz:

(n) Public health care service provider refers to: (1) public health care institution,
which is duly licensed and accredited and devoted primarily to the maintenance and
operation of facilities for health promotion, disease prevention, diagnosis, treatment
and care of individuals suffering from illness, disease, injury, disability or deformity,
or in need of obstetrical or other medical and nursing care; (2) public health care
professional, who is a doctor of medicine, a nurse or a midvvife; (3) public health
worker engaged in the delivery of health care services; or (4) barangay health
worker who has undergone training programs under any accredited government and
NGO and who voluntarily renders primarily health care services in the community
after having been accredited to function as such by the local health board in
accordance with the guidelines promulgated by the Department of Health (DOH) .

Further, the use of the term "private health care institution" in Section 7 of the law,
instead of "private health care service provider," should not be a cause of confusion
for the obvious reason that they are used synonymously.

The Court need not belabor the issue of whether the right to be exempt from being
obligated to render reproductive health service and modem family planning
methods, includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. Clearly, subject to the
qualifications and exemptions earlier discussed, the right to be exempt from being
obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give reproductive
health information and to render reproductive health procedures. The terms
"service" and "methods" are broad enough to include the providing of information
and the rendering of medical procedures.

The same can be said with respect to the contention that the RH Law punishes
health care service providers who intentionally withhold, restrict and provide
incorrect information regarding reproductive health programs and services. For
ready reference, the assailed provision is hereby quoted as follows:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/ or

intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range
of legal, medically-safe, non-abortifacient and effective family planning methods;

From its plain meaning, the word "incorrect" here denotes failing to agree with a
copy or model or with established rules; inaccurate, faulty; failing to agree with the
requirements of duty, morality or propriety; and failing to coincide with the
truth. 257 On the other hand, the word "knowingly" means with awareness or
deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the public
as to the nature and effect of programs and services on reproductive health. Public
health and safety demand that health care service providers give their honest and
correct medical information in accordance with what is acceptable in medical
practice. While health care service providers are not barred from expressing their
own personal opinions regarding the programs and services on reproductive health,
their right must be tempered with the need to provide public health and safety. The
public deserves no less.

7-Egual Protection

The petitioners also claim that the RH Law violates the equal protection clause
under the Constitution as it discriminates against the poor because it makes them
the primary target of the government program that promotes contraceptive use .
They argue that, rather than promoting reproductive health among the poor, the RH
Law introduces contraceptives that would effectively reduce the number of the poor.
Their bases are the various provisions in the RH Law dealing with the poor,
especially those mentioned in the guiding principles 259 and definition of terms260 of
the law.

They add that the exclusion of private educational institutions from the mandatory
reproductive health education program imposed by the RH Law renders it
unconstitutional.

In Biraogo v. Philippine Truth Commission, 261 the Court had the occasion to
expound on the concept of equal protection. Thus:

One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987 Constitution.
The equal protection of the laws is embraced in the concept of due process, as every
unfair discrimination offends the requirements of justice and fair play. It has been
embodied in a separate clause, however, to provide for a more specific guaranty
against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an unwarranted partiality or prejudice,
the sharper weapon to cut it down is the equal protection clause.
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and inst itutions
to treat similarly situated individuals in a similar manner." "The purpose of the
equal protection clause is to secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms
of a statue or by its improper execution through the state's duly constituted
authorities." "In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental objective."

The equal protection clause is aimed at all official state actions, not just those of the
legislature. Its inhibitions cover all the departments of the government including
the political and executive departments, and extend to all actions of a state denying
equal protection of the laws, through whatever agency or whatever guise is taken.

It, however, does not require the universal application of the laws to all persons or
things without distinction. What it simply requires is equality among equals as
determined according to a valid classification. Indeed, the equal protection clause
permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and (4) It applies equally to all members of the
same class. "Superficial differences do not make for a valid classification."

For a classification to meet the requirements of constitutionality, it must include or

embrace all persons who naturally belong to the class. "The classification will be
regarded as invalid if all the members of the class are not similarly treated, both as
to rights conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the members of the
class should possess the same characteristics in equal degree. Substantial similarity
will suffice; and as long as this is achieved, all those covered by the classification are
to be treated equally. The mere fact that an individual belonging to a class differs
from the other members, as long as that class is substantially distinguishable from
all others, does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It must be of
such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. [Emphases supplied; citations
excluded]

To provide that the poor are to be given priority in the government's reproductive
health care program is not a violation of the equal protection clause. In fact, it is
pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct
necessity to address the needs of the underprivileged by providing that they be
given priority in addressing the health development of the people. Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and other
social services available to all the people at affordable cost. There shall be priority
for the needs of the underprivileged, sick, elderly, disabled, women, and children.
The State shall endeavor to provide free medical care to paupers.

It should be noted that Section 7 of the RH Law prioritizes poor and marginalized
couples who are suffering from fertility issues and desire to have children. There is,
therefore, no merit to the contention that the RH Law only seeks to target the poor
to reduce their number. While the RH Law admits the use of contraceptives, it does
not, as elucidated above, sanction abortion. As Section 3(1) explains, the "promotion
and/or stabilization of the population growth rate is incidental to the advancement
of reproductive health."

Moreover, the RH Law does not prescribe the number of children a couple may have
and does not impose conditions upon couples who intend to have children. While the
petitioners surmise that the assailed law seeks to charge couples with the duty to
have children only if they would raise them in a truly humane way, a deeper look
into its provisions shows that what the law seeks to do is to simply provide priority
to the poor in the implementation of government programs to promote basic
reproductive health care.

With respect to the exclusion of private educational institutions from the mandatory
reproductive health education program under Section 14, suffice it to state that the
mere fact that the children of those who are less fortunate attend public educational
institutions does not amount to substantial distinction sufficient to annul the
assailed provision. On the other hand, substantial distinction rests between public
educational institutions and private educational institutions, particularly because
there is a need to recognize the academic freedom of private educational institutions
especially with respect to religious instruction and to consider their sensitivity
towards the teaching of reproductive health education.

8-Involuntary Servitude

The petitioners also aver that the RH Law is constitutionally infirm as it violates
the constitutional prohibition against involuntary servitude. They posit that Section
17 of the assailed legislation requiring private and non-government health care
service providers to render forty-eight (48) hours of pro bono reproductive health
services, actually amounts to involuntary servitude because it requires medical
practitioners to perform acts against their will. 262

The OSG counters that the rendition of pro bono services envisioned in Section 17
can hardly be considered as forced labor analogous to slavery, as reproductive health
care service providers have the discretion as to the manner and time of giving pro
bono services. Moreover, the OSG points out that the imposition is within the
powers of the government, the accreditation of medical practitioners with
PhilHealth being a privilege and not a right.

The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably imbued with
public interest that it is both a power and a duty of the State to control and regulate
it in order to protect and promote the public welfare. Like the legal profession, the
practice of medicine is not a right but a privileged burdened with conditions as it
directly involves the very lives of the people. A fortiori, this power includes the
power of Congress263 to prescribe the qualifications for the practice of professions or
trades which affect the public welfare, the public health, the public morals, and the
public safety; and to regulate or control such professions or trades, even to the point
of revoking such right altogether.264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes
the presence of force, threats, intimidation or other similar means of coercion and
compulsion.265 A reading of the assailed provision, however, reveals that it only
encourages private and non- government reproductive healthcare service providers
to render pro bono service. Other than non-accreditation with PhilHealth, no
penalty is imposed should they choose to do otherwise. Private and non-government
reproductive healthcare service providers also enjoy the liberty to choose which kind
of health service they wish to provide, when, where and how to provide it or whether
to provide it all. Clearly, therefore, no compulsion, force or threat is made upon them
to render pro bono service against their will. While the rendering of such service
was made a prerequisite to accreditation with PhilHealth, the Court does not
consider the same to be an unreasonable burden, but rather, a necessary incentive
imposed by Congress in the furtherance of a perceived legitimate state interest.

Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as long as
their religious beliefs and convictions do not allow them to render reproductive
health service, pro bona or otherwise.

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of the
power to determine whether or not a supply or product is to be included in the
Essential Drugs List (EDL).266

The Court finds nothing wrong with the delegation. The FDA does not only have the
power but also the competency to evaluate, register and cover health services and
methods. It is the only government entity empowered to render such services and
highly proficient to do so. It should be understood that health services and methods
fall under the gamut of terms that are associated with what is ordinarily
understood as "health products."

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:

SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be
called the Food and Drug Administration (FDA) in the Department of Health
(DOH). Said Administration shall be under the Office of the Secretary and shall
have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules
and regulations issued pursuant to the same;

"(b) To assume primary jurisdiction in the collection of samples of health

products;

"(c) To analyze and inspect health products in connection with the

implementation of this Act;

"(d) To establish analytical data to serve as basis for the preparation of health
products standards, and to recommend standards of identity, purity, safety,
efficacy, quality and fill of container;

"(e) To issue certificates of compliance with technical requirements to serve as

basis for the issuance of appropriate authorization and spot-check for
compliance with regulations regarding operation of manufacturers,
importers, exporters, distributors, wholesalers, drug outlets, and other
establishments and facilities of health products, as determined by the FDA;

"x x x

"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters,

wholesalers, retailers, consumers, and non-consumer users of health products
to report to the FDA any incident that reasonably indicates that said product
has caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;

"(j) To issue cease and desist orders motu propio or upon verified complaint
for health products, whether or not registered with the FDA Provided, That
for registered health products, the cease and desist order is valid for thirty
(30) days and may be extended for sixty ( 60) days only after due process has
been observed;
 "(k) After due process, to order the ban, recall, and/or withdrawal of any
health product found to have caused death, serious illness or serious injury to
a consumer or patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned to implement
the risk management plan which is a requirement for the issuance of the
appropriate authorization;

x x x.

As can be gleaned from the above, the functions, powers and duties of the FDA are
specific to enable the agency to carry out the mandates of the law. Being the
country's premiere and sole agency that ensures the safety of food and medicines
available to the public, the FDA was equipped with the necessary powers and
functions to make it effective. Pursuant to the principle of necessary implication, the
mandate by Congress to the FDA to ensure public health and safety by permitting
only food and medicines that are safe includes "service" and "methods." From the
declared policy of the RH Law, it is clear that Congress intended that the public be
given only those medicines that are proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based medical research
standards. The philosophy behind the permitted delegation was explained in
Echagaray v. Secretary of Justice,267 as follows:

The reason is the increasing complexity of the task of the government and the
growing inability of the legislature to cope directly with the many problems
demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be expected
reasonably to comprehend. Specialization even in legislation has become necessary.
To many of the problems attendant upon present day undertakings, the legislature
may not have the competence, let alone the interest and the time, to provide the
required direct and efficacious, not to say specific solutions.

10- Autonomy of Local Governments and the Autonomous Region

of Muslim Mindanao (ARMM)

As for the autonomy of local governments, the petitioners claim that the RH Law
infringes upon the powers devolved to local government units (LGUs) under Section
17 of the Local Government Code. Said Section 17 vested upon the LGUs the duties
and functions pertaining to the delivery of basic services and facilities, as follows:

SECTION 17. Basic Services and Facilities.

(a) Local government units shall endeavor to be self-reliant and shall

continue exercising the powers and discharging the duties and functions
currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them pursuant to
this Code. Local government units shall likewise exercise such other powers
and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic
services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.

While the aforementioned provision charges the LGUs to take on the

functions and responsibilities that have already been devolved upon them
from the national agencies on the aspect of providing for basic services and
facilities in their respective jurisdictions, paragraph (c) of the same provision
provides a categorical exception of cases involving nationally-funded projects,
facilities, programs and services.268Thus:

(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by
the National Government under the annual General Appropriations Act,
other special laws, pertinent executive orders, and those wholly or partially
funded from foreign sources, are not covered under this Section, except in
those cases where the local government unit concerned is duly designated as
the implementing agency for such projects, facilities, programs and services.
[Emphases supplied]

The essence of this express reservation of power by the national government is that,
unless an LGU is particularly designated as the implementing agency, it has no
power over a program for which funding has been provided by the national
government under the annual general appropriations act, even if the program
involves the delivery of basic services within the jurisdiction of the LGU. 269 A
complete relinquishment of central government powers on the matter of providing
basic facilities and services cannot be implied as the Local Government Code itself
weighs against it.270

In this case, a reading of the RH Law clearly shows that whether it pertains to the
establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers, 273 it will be the national
government that will provide for the funding of its implementation. Local autonomy
is not absolute. The national government still has the say when it comes to national
priority programs which the local government is called upon to implement like the
RH Law.

Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to
provide these services. There is nothing in the wording of the law which can be
construed as making the availability of these services mandatory for the LGUs. For
said reason, it cannot be said that the RH Law amounts to an undue encroachment
by the national government upon the autonomy enjoyed by the local governments.

The ARMM

The fact that the RH Law does not intrude in the autonomy of local governments
can be equally applied to the ARMM. The RH Law does not infringe upon its
autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the
organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption of
the operation of the RH Law in the autonomous region, refer to the policy
statements for the guidance of the regional government. These provisions relied
upon by the petitioners simply delineate the powers that may be exercised by the
regional government, which can, in no manner, be characterized as an abdication by
the State of its power to enact legislation that would benefit the general welfare.
After all, despite the veritable autonomy granted the ARMM, the Constitution and
the supporting jurisprudence, as they now stand, reject the notion of imperium et
imperio in the relationship between the national and the regional
governments.274 Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and plenary
power to legislate on all subjects which extends to all matters of general concern or
common interest.275

11 - Natural Law
With respect to the argument that the RH Law violates natural law, 276 suffice it to
say that the Court does not duly recognize it as a legal basis for upholding or
invalidating a law. Our only guidepost is the Constitution. While every law enacted
by man emanated from what is perceived as natural law, the Court is not obliged to
see if a statute, executive issuance or ordinance is in conformity to it. To begin with,
it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere
thoughts and notions on inherent rights espoused by theorists, philosophers and
theologists. The jurists of the philosophical school are interested in the law as an
abstraction, rather than in the actual law of the past or present. 277 Unless, a natural
right has been transformed into a written law, it cannot serve as a basis to strike
down a law. In Republic v. Sandiganbayan, 278 the very case cited by the petitioners,
it was explained that the Court is not duty-bound to examine every law or action
and whether it conforms with both the Constitution and natural law. Rather,
natural law is to be used sparingly only in the most peculiar of circumstances
involving rights inherent to man where no law is applicable. 279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of
life. It does not allow abortion in any shape or form. It only seeks to enhance the
population control program of the government by providing information and making
non-abortifacient contraceptives more readily available to the public, especially to
the poor.

Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it
seeks to provide access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare services, methods, devices, and
supplies. As earlier pointed out, however, the religious freedom of some sectors of
society cannot be trampled upon in pursuit of what the law hopes to achieve. After
all, the Constitutional safeguard to religious freedom is a recognition that man
stands accountable to an authority higher than the State.

In conformity with the principle of separation of Church and State, one religious
group cannot be allowed to impose its beliefs on the rest of the society. Philippine
modem society leaves enough room for diversity and pluralism. As such, everyone
should be tolerant and open-minded so that peace and harmony may continue to
reign as we exist alongside each other.

As healthful as the intention of the RH Law may be, the idea does not escape the
Court that what it seeks to address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause of these perennial issues
is not the large population but the unequal distribution of wealth. Even if
population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.

At any rate, population control may not be beneficial for the country in the long run.
The European and Asian countries, which embarked on such a program generations
ago , are now burdened with ageing populations. The number of their young workers
is dwindling with adverse effects on their economy. These young workers represent a
significant human capital which could have helped them invigorate, innovate and
fuel their economy. These countries are now trying to reverse their programs, but
they are still struggling. For one, Singapore, even with incentives, is failing.

And in this country, the economy is being propped up by remittances from our
Overseas Filipino Workers. This is because we have an ample supply of young able-
bodied workers. What would happen if the country would be weighed down by an
ageing population and the fewer younger generation would not be able to support
them? This would be the situation when our total fertility rate would go down below
the replacement level of two (2) children per woman.280

Indeed, at the present, the country has a population problem, but the State should
not use coercive measures (like the penal provisions of the RH Law against
conscientious objectors) to solve it. Nonetheless, the policy of the Court is non-
interference in the wisdom of a law.

x x x. But this Court cannot go beyond what the legislature has laid down. Its duty
is to say what the law is as enacted by the lawmaking body. That is not the same as
saying what the law should be or what is the correct rule in a given set of
circumstances. It is not the province of the judiciary to look into the wisdom of the
law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the
application of a particular law. It is for the legislature to enact remedial legislation
if that would be necessary in the premises. But as always, with apt judicial caution
and cold neutrality, the Court must carry out the delicate function of interpreting
the law, guided by the Constitution and existing legislation and mindful of settled
jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the
lawmaking body.281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws, but
with coercive measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No. 6365), the
Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed
legislation. All the same, the principle of "no-abortion" and "non-coercion" in the
adoption of any family planning method should be maintained.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court

declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the
following provisions which are declared UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in the RH-IRR insofar as they:

a) require private health facilities and non-maternity specialty hospitals and
hospitals owned and operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344,
to another health facility which is conveniently accessible; and b) allow minor-
parents or minors who have suffered a miscarriage access to modem methods
of family planning without written consent from their parents or guardian/s;

2) Section 23(a)(l) and the corresponding provision in the RH-IRR,

particularly Section 5 .24 thereof, insofar as they punish any healthcare
service provider who fails and or refuses to disseminate information
regarding programs and services on reproductive health regardless of his or
her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar

as they allow a married individual, not in an emergency or life-threatening
 case, as defined under Republic Act No. 8344, to undergo reproductive health
procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar

as they limit the requirement of parental consent only to elective surgical
procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR,

particularly Section 5.24 thereof, insofar as they punish any healthcare
service provider who fails and/or refuses to refer a patient not in an
emergency or life-threatening case, as defined under Republic Act No. 8344,
to another health care service provider within the same facility or one which
is conveniently accessible regardless of his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly

Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the

rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the
qualifier "primarily" in defining abortifacients and contraceptives, as they are
ultra vires and, therefore, null and void for contravening Section 4(a) of the
RH Law and violating Section 12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by
its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A.
No. 10354 which have been herein declared as constitutional.

SO ORDERED.