EN BANC C)......

18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on each
count);
[G.R. No. 139465. January 18, 2000]
D)......18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count);
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional
Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. Esmso E)......2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty
less than one year).
DECISION
(p. 14, Rollo.)
MELO, J.:
On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of
attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069.
The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of
Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and
government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill
the documents in support thereof. The panel found that the "official English translation of some documents in
of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizens
Spanish were not attached to the request and that there are some other matters that needed to be addressed"
basic due process rights, or the governments ironclad duties under a treaty. The bugle sounds and this Court
(p. 15, Rollo). Calrky
must once again act as the faithful guardian of the fundamental writ.

Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a
The petition at our doorstep is cast against the following factual backdrop:
letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the
U. S. Government, as well as all documents and papers submitted therewith; and that he be given ample time
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing to comment on the request after he shall have received copies of the requested papers. Private respondent
the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The also requested that the proceedings on the matter be held in abeyance in the meantime.
Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the
suppression of crime both in the state where it was committed and the state where the criminal may have
Later, private respondent requested that preliminarily, he be given at least a copy of, or access to, the request
escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter
of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to
into similar treaties with other interested countries; and the need for rules to guide the executive department
amplify on his request.
and the courts in the proper implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the
Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the
Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as
the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the
ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)
(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon
certification by the principal diplomatic or consular officer of the requested state resident in the Requesting
State). Kycalr
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U. S. Note
Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United
States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S.
District Court, Southern District of Florida, and other supporting documents for said extradition. Based on
the papers submitted, private respondent appears to be charged in the United States with violation of the
following provisions of the United States Code (USC):
A)......18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum
Penalty 5 years on each count);
B)......26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each
count);
In response to private respondents July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but
received by private respondent only on August 4, 1999), denied the foregoing requests for the following
reasons:
1. We find it premature to furnish you with copies of the extradition request and supporting documents from
the United States Government, pending evaluation by this Department of the sufficiency of the extradition
documents submitted in accordance with the provisions of the extradition treaty and our extradition law.
Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the
documentary requirements and establishes the procedures under which the documents submitted shall be
received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in
Section 4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin
to preliminary investigation of criminal cases. We merely determine whether the procedures and
requirements under the relevant law and treaty have been complied with by the Requesting Government. The
constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the person sought to be extradited will be
furnished by the court with copies of the petition, request and extradition documents and this Department
will not pose any objection to a request for ample time to evaluate said documents. Mesm
2. The formal request for extradition of the United States contains grand jury information and documents Forthwith, petitioner initiated the instant proceedings, arguing that:
obtained through grand jury process covered by strict secrecy rules under United States law. The United
States had to secure orders from the concerned District Courts authorizing the United States to disclose
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE
certain grand jury information to Philippine government and law enforcement personnel for the purpose of
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE
extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United
TEMPORARY RESTRAINING ORDER BECAUSE: Slxs c
States District Courts. In this particular extradition request the United States Government requested the
Philippine Government to prevent unauthorized disclosure of the subject information. This Departments
denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the I.
Philippine Government must represent the interests of the United States in any proceedings arising out of a
request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS
governments in all extradition requests. COMPLAINED OF, I. E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE
OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE
3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE
request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR
"[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO
Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
accused or convicted persons must be processed expeditiously.
II.
(pp. 77-78, Rollo.)
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER
Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;
of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign
Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner III.
to furnish private respondent the extradition documents, to give him access thereto, and to afford him an
opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request
impartially, fairly and objectively); certiorari (to set aside herein petitioners letter dated July 13, 1999); and THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE,
prohibition (to restrain petitioner from considering the extradition request and from filing an extradition FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing
any act directed to the extradition of private respondent to the United States), with an application for the IV.
issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo). Scslx
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.
said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion.
(pp. 19-20, Rollo.)
After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own
behalf, moved that he be given ample time to file a memorandum, but the same was denied.
On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for,
was a temporary restraining order (TRO) providing: slx mis
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You,
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your
Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August
to maintain the status quo by refraining from committing the acts complained of; from conducting further 9, 1999 issued by public respondent in Civil Case No. 99-94684.
proceedings in connection with the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this
directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service
17th day of August 1999.
on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.

(pp. 120-121, Rollo.)

The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the
counsels for the parties herein, is set on August 17, 1999 at 9:00 oclock in the morning. The respondents are,
likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their
on or before said date. SO ORDERED. (pp. 110-111, Rollo.) respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of
review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal this law and the relevant treaty or convention, he shall forward the request together with the related
point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his
respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would office to take charge of the case.
necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially
the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO
The above provision shows only too clearly that the executive authority given the task of evaluating the
issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the
sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the
filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private
coverage of this task?
respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition
proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the
Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority
breach, is there any conflict between private respondents basic due process rights and the provisions of the must ascertain whether or not the request is supported by:
RP-US Extradition Treaty?
1. Documents, statements, or other types of information which describe the identity and probable location of
The issues having transcendental importance, the Court has elected to go directly into the substantive merits the person sought;
of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No.
99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of 2. A statement of the facts of the offense and the procedural history of the case;
August 17, 1999 by the trial court. Missdaa

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was
executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree
No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the
removal of an accused from the Philippines with the object of placing him at the disposal of foreign
authorities to enable the requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on him under the penal or criminal
law of the requesting state or government." The portions of the Decree relevant to the instant case which
involves a charged and not convicted individual, are abstracted as follows:
The Extradition Request
3. A statement of the provisions of the law describing the essential elements of the offense for which
extradition is requested;
4. A statement of the provisions of law describing the punishment for the offense; Rtc spped
5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of
punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said
Article, as applicable.

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign (Paragraph 2, Article 7, Presidential Decree No. 1069.)
Affairs, and shall be accompanied by:
7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest
1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of and committal for trial if the offense had been committed there;
the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal
force;
8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and

2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and
9. A copy of the charging document.
identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of,
and the time and place of the commission of these acts; Sda adsc
(Paragraph 3, ibid.)
3. The text of the applicable law or a statement of the contents of said law, and the designation or description
of the offense by the law, sufficient for evaluation of the request; and The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents
received in support of the request had been certified by the principal diplomatic or consular officer of the
Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note
4. Such other documents or information in support of the request.
No. 951309 from the Department of Foreign Affairs).

(Section 4, Presidential Decree No. 1069.)

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the
executive authority of the Requested State determines that the request is politically motivated, or that the
Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently offense is a military offense which is not punishable under non-military penal legislation."
provides:
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of
Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case
(Paragraph [1], Section 5, P. D. No. 1069). The lawyer designated shall then file a written petition with the
proper regional trial court of the province or city, with a prayer that the court take the extradition request
under consideration (Paragraph [2], ibid.). Korte
The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as
practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the
day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest
and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.),
particularly to prevent the flight of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a
special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the
extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the
summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the
attorney having charge of the case may, upon application by the Requesting State, represent the latter
throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the
reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section
10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately
executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the
Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief
(Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable based on the
application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition
Treaty. The trial court also determines whether or not the offense for which extradition is requested is a
political one (Paragraph [1], Article 3, RP-US Extradition Treaty).
With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself:
What is the nature of the role of the Department of Justice at the evaluation stage of the extradition
proceedings? Sclaw
A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the
extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of
Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their
sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is
politically motivated, or that the offense is a military offense which is not punishable under non-military
penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the
Secretary of Justice has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there was failure to abide
by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was
delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours
later, the Department of Justice received the request, apparently without the Department of Foreign Affairs
discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an
assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting
as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the
magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter,
the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate
the same to find out whether they comply with the requirements laid down in the Extradition Law and the
RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice
had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be
able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage
where private respondent insisted on the following: (1) the right to be furnished the request and the
supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose
the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be
held in abeyance pending the filing of private respondent's opposition to the request. Kyle
The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers
and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the
Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying
the message that if it were to evaluate the extradition request, it would not allow private respondent to
participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs
thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded
judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of
Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to
officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less
than one day, make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui
generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of
ministerial functions. At such stage, the executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if
on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to
make a determination whether or not the request is politically motivated, or that the offense is a military one
which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 &
and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an
investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an
administrative bodys quasi-judicial power. Ex sm
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b)
determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the
facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United
States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one of
the determinative powers of an administrative body which better enables it to exercise its quasi-judicial
authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to
inspect the records and premises, and investigate the activities, of persons or entities coming under its
jurisdiction (Ibid., p. 27), or to require disclosure of information by means of accounts, records, reports,
testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or
tool in an administrative agencys performance of its rule-making or quasi-judicial functions. Notably,
investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of
an investigatory body with the sole power of investigation. It does not exercise judicial functions and its
power is limited to investigating the facts and making findings in respect thereto. The Court laid down the
test of determining whether an administrative body is exercising judicial functions or merely investigatory
functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and
obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence
submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to
make a final pronouncement affecting the parties, then there is an absence of judicial discretion and
judgment. Mse sm
The above description in Ruperto applies to an administrative body authorized to evaluate extradition
documents. The body has no power to adjudicate in regard to the rights and obligations of both the
Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply
with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition
petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not
the extradition should be effected. That is the role of the court. The bodys power is limited to an initial
finding of whether or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is
characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process.
Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be
effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of
the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the
provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US
Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted
(Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested
person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect,
the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee
may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition
Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is
to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective
extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditees liberty as early as during the evaluation
stage. It is not only an imagined threat to his liberty, but a very imminent one. Sc lex
Because of these possible consequences, we conclude that the evaluation process is akin to an administrative
agency conducting an investigative proceeding, the consequences of which are essentially criminal since
such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty
of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement
(p. 78, Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation.
In a number of cases, we had occasion to make available to a respondent in an administrative case or
investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further,
as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at
the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and
the right against self-incrimination (tsn, August 31, 1999, p. 135;Escobedo vs. Illinois, 378 U.S. 478; Gideon
vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-
incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in
criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such
as an administrative investigation of a licensed physician who is charged with immorality, which could result
in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs.
Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of ones license as a medical practitioner, is
an even greater deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent
which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the
investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or
penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs.
Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine
whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is
presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although
it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal
in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of
the wrongdoer for the offense charged, the proceeding is civil in nature. x law
The cases mentioned above refer to an impending threat of deprivation of ones property or property right. No
less is this true, but even more so in the case before us, involving as it does the possible deprivation of
liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself
and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent
in incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a
foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the
evaluation procedure is akin to a preliminary investigation since both procedures may have the same result
the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of
extradition proceedings, a preliminary investigation, which may result in the filing of an information against
the respondent, can possibly lead to his arrest, and to the deprivation of his liberty.
Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, Petitioners Memorandum)
that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not
well-taken. Wright is not authority for petitioners conclusion that his preliminary processing is not akin to a
preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of
the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice,
information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public
authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in
furtherance of the general public good, which regards and preserves these principles of liberty and justice,
must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process
requirements cannot be deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the suppression and punishment of crime
in their respective jurisdictions. At the same time, both States accord common due process protection to their
respective citizens. Sc
The due process clauses in the American and Philippine Constitutions are not only worded in exactly
identical language and terminology, but more importantly, they are alike in what their respective Supreme
Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in
their interpretation, their dynamic and resilient character which make them capable of meeting every modern
problem, and their having been designed from earliest time to the present to meet the exigencies of an
undefined and expanding future. The requirements of due process are interpreted in both the United States
and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect
and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the
due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the
decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the
embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owners Association vs. City
Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in
the very idea of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components substantive due process which requires the intrinsic validity of
the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process
which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an
impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in
criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests,
and upon notice, they may claim the right to appear therein and present their side and to refute the position of
the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the
Rules of Court guarantees the respondents basic due process rights, granting him the right to be furnished a
copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-
affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent
shall have the right to examine all other evidence submitted by the complainant. Scmis
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceedings where there is an urgent need for immediate action, like the summary abatement of a
nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative
charges (Section 63, Local Government Code, B. P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are immediate threats to public health and decency,
and the cancellation of a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from
enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the
summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary
appointee; and
3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the
extradition proceedings fall under any of the described situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy
considering that the subject treaty involves the U.S. Government. Mis sc
American jurisprudence distinguishes between interstate rendition or extradition which is based on the
Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In
interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the
demanding state. The Extradition Clause and the implementing statute are given a liberal construction to
carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the
state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition
of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or
jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation
that the person demanded was in the demanding state at the time the offense charged was committed, and that
the person demanded is charged with the commission of the crime or that prosecution has been begun in the
demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then
filed with the governor of the asylum state, and must contain such papers and documents prescribed by
statute, which essentially include a copy of the instrument charging the person demanded with a crime, such
as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said
charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on
the governor of the asylum state to effect the extradition (35 C.J.S. 408-410). A statutory provision requiring
duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other
instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his
attorney is directory. However, the right being such a basic one has been held to be a right mandatory on
demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr.,
324, S.W.2d 853). Mis spped
In international proceedings, extradition treaties generally provide for the presentation to the executive
authority of the Requested State of a requisition or demand for the return of the alleged offender, and the
designation of the particular officer having authority to act in behalf of the demanding nation (31A Am
Jur 2d 815).
In petitioners memorandum filed on September 15, 1999, he attached thereto a letter dated September 13,
1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition
procedures and principles, which are basically governed by a combination of treaties (with special reference
to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the
provisional arrest of an individual may be made directly by the Philippine Department of Justice to the U.S.
Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is
transmitted subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request to the Department of
Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has
been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide
reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable
offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the
federal statute that ensures admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18
U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in
support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country.
The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the
hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition;
and (c) there is probable cause to believe that the defendant is the person sought and that he committed the
offenses charged (Ibid.) Spped
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a
"complaint made under oath, charging any person found within his jurisdiction" with having committed any
of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard,
it is noted that a long line of American decisions pronounce that international extradition proceedings partake
of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt
or innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it incorporates its
determinations in factual findings and conclusions of law and certifies the persons extraditability. The court
then forwards this certification of extraditability to the Department of State for disposition by the Secretary
of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C.
3186).
7. The subject of an extradition request may not litigate questions concerning the motives of the requesting
government in seeking his extradition. However, a person facing extradition may present whatever
information he deems relevant to the Secretary of State, who makes the final determination whether to
surrender an individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity
the Department of State which has the power to evaluate the request and the extradition documents in the
beginning, and, in the person of the Secretary of State, the power to act or not to act on the courts
determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which
should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned
(see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the
petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily
turned over the request to the Department of Justice which has taken over the task of evaluating the request
as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Jo spped
Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be
extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that
petitioners primary concern is the possible delay in the evaluation process.
We agree with private respondents citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest
worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed
and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in
particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and
perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine Government that no right that of
liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well,
is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondents Memorandum.) Spped jo
In the Philippine context, this Courts ruling is invoked:
One of the basic principles of the democratic system is that where the rights of the individual are concerned,
the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the
means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the bypassing of an individuals rights. It is
no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation who would deny him that right ( Association of Small
Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioners argument that extradition is a tool of criminal law enforcement. To
be effective, requests for extradition or the surrender of accused or convicted persons must be processed
expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are,
however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous
haste. It does not carry a disregard of the basic principles inherent in "ordered liberty." Miso
Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no
extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the
governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37
C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory
requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under
an extradition treaty, the executive authority of the requested state has the power to deny the behest from the
requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of
Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not
forward the request to the Department of Justice for the filing of the extradition petition since non-
compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the
extradition.
In this light, it should be observed that the Department of Justice exerted notable efforts in assuring
compliance with the requirements of the law and the treaty since it even informed the U.S. Government of
certain problems in the extradition papers (such as those that are in Spanish and without the official English
translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation
meetings are still supposed to take place between the lawyers in his Department and those from the U.S.
Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an
abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently
necessitates immediate and prompt action where notice and hearing can be dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private
respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him?
Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand, there is yet no
extraditee, but ironically on the other, it results in an administrative determination which, if adverse to the
person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of
the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him),
faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation
proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The
prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and
shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of
Article III which reads: Nex old
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as
to government research data used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1)
the right to information on matters of public concern, and (2) the corollary right of access to official records
and documents. The general right guaranteed by said provision is the right to information on matters of
public concern. In its implementation, the right of access to official records is likewise conferred. These
cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil.
Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed
and critical public opinion which alone can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondents letter-request dated July 1, 1999 do not fall
under the guarantee of the foregoing provision since the matters contained in the documents requested are
not of public concern. On the other hand, private respondent argues that the distinction between matters
vested with public interest and matters which are of purely private interest only becomes material when a
third person, who is not directly affected by the matters requested, invokes the right to information. However,
if the person invoking the right is the one directly affected thereby, his right to information becomes absolute.
The concept of matters of public concern escapes exact definition. Strictly speaking, every act of a public
officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987
Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of
subjects which the public may want to know, either because these directly affect their lives or simply because
such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530
[1987]). Hence, the real party in interest is the people and any citizen has "standing".Mani kx
When the individual himself is involved in official government action because said action has a direct
bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the
basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on
matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the
right to be informed of the nature and cause of the accusation against him.
The right to information is implemented by the right of access to information within the control of the
government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such
information may be contained in official records, and in documents and papers pertaining to official acts,
transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official government action from the
U. S. Government. No official action from our country has yet been taken. Moreover, the papers have some
relation to matters of foreign relations with the U. S. Government. Consequently, if a third party invokes this
constitutional provision, stating that the extradition papers are matters of public concern since they may
result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in
favor of the interests necessary for the proper functioning of the government. During the evaluation
procedure, no official governmental action of our own government has as yet been done; hence the
invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already
fall under matters of public concern, because our government by then shall have already made an official
decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private
respondents entitlement to notice and hearing during the evaluation stage of the proceedings constitute a
breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the
answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the
Constitution?
First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of
the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit
ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on
foreign relations. Maniks
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law,
requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's
legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that
"[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles
of international law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations." Under the doctrine of incorporation, rules of international
law form part of the law of the land and no further legislative action is needed to make such rules applicable
in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with
situations in which there appears to be a conflict between a rule of international law and the provisions of the
constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect
to both since it is to be presumed that municipal law was enacted with proper regard for the generally
accepted principles of international law in observance of the Incorporation Clause in the above-cited
constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs.
Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984
[1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all
circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law
of the land does not pertain to or imply the primacy of international law over national or municipal law in the
municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with, but are not superior to, national legislative enactments.
Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute
may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution
(Ibid.). Manikan
In the case at bar, is there really a conflict between international law and municipal or national law? En
contrario, these two components of the law of the land are not pitted against each other. There is no occasion
to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US
Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights
of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of
extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior
thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this
silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation
procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the
supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic
twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither
the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American
jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition
proceedings as explained above, the prospective extraditee may even request for copies of the extradition
documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a
demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to prevent unauthorized
disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of
Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioners revelation
that everything it refuses to make available at this stage would be obtainable during trial. The Department of
Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury
information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the
extradition proceedings. Not even during trial. Oldmis o
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due
process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to
consider similar situations in jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation
since both procedures may result in the arrest of the respondent or the prospective extraditee. In the
evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-
US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioners theory, because there is
no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas
corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of
the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public
safety requires it"? Petitioners theory would also infer that bail is not available during the arrest of the
prospective extraditee when the extradition petition has already been filed in court since Presidential Decree
No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which
provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended " Can petitioner validly argue that since these contraventions are by
virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could
thus be subservient thereto? Ncm
The basic principles of administrative law instruct us that "the essence of due process in administrative
proceedings is an opportunity to explain ones side or an opportunity to seek reconsideration of the actions or
ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457
[1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas
School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural
due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots
Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of
constitutional guarantees in the enforcement of a law or treaty. Petitioners fears that the Requesting State
may have valid objections to the Requested States non-performance of its commitments under the
Extradition Treaty are insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of
Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201
SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in
summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service
Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for
Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated
National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System
in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by
Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a
formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of
Appeals:
... [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be
removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an
employee must be informed of the charges preferred against him, and that the normal way by which the
employee is so informed is by furnishing him with a copy of the charges against him. This is a basic
procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional
provision on due process. The second minimum requirement is that the employee charged with some
misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to
say, his defenses against the charges levelled against him and to present evidence in support of his
defenses. Ncmmis
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of
the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss of property or
employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The
convergence of petitioners favorable action on the extradition request and the deprivation of private
respondents liberty is easily comprehensible.
We have ruled time and again that this Courts equity jurisdiction, which is aptly described as "justice outside
legality," may be availed of only in the absence of, and never against, statutory law or judicial
pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court
of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice
outside legality," since private respondents due process rights, although not guaranteed by statute or by
treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we
choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping
with the principles of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government
authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be
laid.
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of
merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting
papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The
incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is
hereby ordered dismissed.
SO ORDERED. 6/
EN BANC
[G.R. No. 118295. May 2, 1997]
WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate
and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES, both as
taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM
ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-
KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as non-
governmental organizations, petitioners, vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA
RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI
GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO
MERCADO, BLAS OPLE, JOHN OSMEA, SANTANINA RASUL, RAMON REVILLA, RAUL
ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities as members of the
Philippine Senate who concurred in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget and Management; CARIDAD VALDEHUESA, in her capacity as National
Treasurer; RIZALINO NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO
SEBASTIAN, in his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as
Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; and
TEOFISTO T. GUINGONA, in his capacity as Executive Secretary, respondents.
DECISION
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto of
the vast majority of countries has revolutionized international business and economic relations amongst
states. It has irreversibly propelled the world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and privatization, the third-millennium buzz words,
are ushering in a new borderless world of business by sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national economies like tariffs, export subsidies, import
quotas, quantitative restrictions, tax exemptions and currency controls. Finding market niches and becoming
the best in specific industries in a market-driven and export-oriented global scenario are replacing age-old
beggar-thy-neighbor policies that unilaterally protect weak and inefficient domestic producers of goods and
services. In the words of Peter Drucker, the well-known management guru, Increased participation in the
world economy has become the key to domestic economic growth and prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions -- inspired by that grand political body, the United Nations --
were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to
address the rehabilitation and reconstruction of war-ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with currency problems; and the third, the
International Trade Organization (ITO), which was to foster order and predictability in world trade and to
minimize unilateral protectionist policies that invite challenge, even retaliation, from other states. However,
for a variety of reasons, including its non-ratification by the United States, the ITO, unlike the IMF and WB,
never took off. What remained was only GATT -- the General Agreement on Tariffs and Trade. GATT was a
collection of treaties governing access to the economies of treaty adherents with no institutionalized body
administering the agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo
Round and the Uruguay Round, the world finally gave birth to that administering body -- the World Trade
Organization -- with the signing of the Final Act in Marrakesh, Morocco and the ratification of the WTO
Agreement by its members.[1]
Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as
articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving Philippine access to
foreign markets, especially its major trading partners, through the reduction of tariffs on its exports,
particularly agricultural and industrial products. The President also saw in the WTO the opening of new
opportunities for the services sector x x x, (the reduction of) costs and uncertainty associated with exporting
x x x, and (the attraction of) more investments into the country. Although the Chief Executive did not
expressly mention it in his letter, the Philippines - - and this is of special interest to the legal profession - -
will benefit from the WTO system of dispute settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal.Heretofore, trade
disputes were settled mainly through negotiations where solutions were arrived at frequently on the basis of
relative bargaining strengths, and where naturally, weak and underdeveloped countries were at a
disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines to place nationals and products of member-
countries on the same footing as Filipinos and local products and (2) that the WTO intrudes, limits and/or
impairs the constitutional powers of both Congress and the Supreme Court, the instant petition before this
Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to develop a self-reliant
and independent national economy effectively controlled by Filipinos x x x (to) give preference to qualified
Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced
goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it prescribe Philippine integration into a global economy
that is liberalized, deregulated and privatized? These are the main questions raised in this petition
for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by the
President of the Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement,
for brevity) and (2) for the prohibition of its implementation and enforcement through the release and
utilization of public funds, the assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of the Department of Trade and Industry
(Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral
Negotiations (Final Act, for brevity).
By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from the
President of the Philippines,[3] stating among others that the Uruguay Round Final Act is hereby submitted to
the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another letter from the President of the
Philippines[4] likewise dated August 11, 1994, which stated among others that the Uruguay Round Final Act,
the Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and
the Understanding on Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of
P.S. 1083, a resolution entitled Concurring in the Ratification of the Agreement Establishing the World Trade
Organization.[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which Resolved, as it is hereby
resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines
of the Agreement Establishing the World Trade Organization. [6] The text of the WTO Agreement is written on
pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments (identified in the said Agreement as Annexes 1,
2 and 3 thereto and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed[7] the Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines,
after having seen and considered the aforementioned Agreement Establishing the World Trade Organization
and the agreements and associated legal instruments included in Annexes one (1), two (2) and three (3) of
that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby
ratify and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the
Agreement Proper and the associated legal instruments included in Annexes one (1), two (2) and three (3) of
that Agreement which are integral parts thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and
its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the
Understanding on Commitments in Financial Services. In his Memorandum dated May 13, 1996,[8] the
Solicitor General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of
matters, such as measures in favor of least developed countries, notification procedures, relationship of WTO
with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing non-conforming measures, market access, national
treatment, and definitions of non-resident supplier of financial services, commercial presence and new
financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on respondents comment
and petitioners reply thereto, the Court resolved on December 12, 1995, to give due course to the petition,
and the parties thereafter filed their respective memoranda. The Court also requested the Honorable Lilia R.
Bautista, the Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a
paper, hereafter referred to as Bautista Paper, [9] for brevity, (1) providing a historical background of and (2)
summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the
transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to the
Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2) copies of
the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case submitted for
resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the
36-volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated October 24,
1996, he listed the various bilateral or multilateral treaties or international instruments involving derogation
of Philippine sovereignty. Petitioners, on the other hand, submitted their Compliance dated January 28, 1997,
on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the deliberations and voting leading to
the concurrence are estopped from impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the
provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict and
impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is vested in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the
exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or
excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm
Agreement Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or
excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing the World
Trade Organization, and not with the Presidential submission which included the Final Act, Ministerial
Declaration and Decisions, and the Understanding on Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents synthesized the several issues raised by
petitioners into the following:[10]
1. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization implied rejection of the treaty embodied in the Final
Act.
By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has
effectively ignored three, namely: (1) whether the petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna Dominique
Coseteng) are estopped from joining this suit; and (3) whether the respondent-members of the Senate acted in
grave abuse of discretion when they voted for concurrence in the ratification of the WTO Agreement. The
foregoing notwithstanding, this Court resolved to deal with these three issues thus:
(1) The political question issue -- being very fundamental and vital, and being a matter that probes into the
very jurisdiction of this Court to hear and decide this case -- was deliberated upon by the Court and will thus
be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have
effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in
respondents favor, will not cause the petitions dismissal as there are petitioners other than the two senators,
who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as
an integral part of the disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question the locus standi of
petitioners. Hence, they are also deemed to have waived the benefit of such issue. They probably realized
that grave constitutional issues, expenditures of public funds and serious international commitments of the
nation are involved here, and that transcendental public interest requires that the substantive issues be met
head on and decided on the merits, rather than skirted or deflected by procedural matters. [11]
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED,
DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO
JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE
SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR
IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL
POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON
COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
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. [12] Once a controversy as to the application or
interpretation of a 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.[13]
The jurisdiction of this Court to adjudicate the matters [14] raised in the petition is clearly set out in the 1987
Constitution,[15] as follows:
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 foregoing text emphasizes the judicial departments duty and power to strike down grave abuse of
discretion on the part of any branch or instrumentality of government including Congress. It is an innovation
in our political law.[16] As explained by former Chief Justice Roberto Concepcion, [17] the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many cases, [18] it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in
the ordinary course of law, we have no hesitation at all in holding that this petition should be given due
course and the vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, 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. On this, we
have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will not review
the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or pass
upon the merits of trade liberalization as a policy espoused by said international body. Neither will it rule on
the propriety of the governments economic policy of reducing/removing tariffs, taxes, subsidies, quantitative
restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional duty to determine
whether or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the Senate in ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution mandating economic
nationalism are violated by the so-called parity provisions and national treatment clauses scattered in various
parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations
and in the Understanding on Commitments in Financial Services.
Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II, and Secs. 10 and 12,
Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx xx xx
Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by
Filipinos.
xx xx xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx
Sec. 10. x x x. The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
xx xx xx xx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make them competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions
quoted in their memorandum:[19]
a) In the area of investment measures related to trade in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994. no Member shall apply any TRIM
that is inconsistent with the provisions of Article III or Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in the Annex to
this Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round, Legal
Instruments, p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4
of Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or
under administrative rulings, or compliance with which is necessary to obtain an advantage, and
which require:
(a) the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether
specified in terms of particular products, in terms of volume or value of products, or in terms of proportion of
volume or value of its local production; or
(b) that an enterprises purchases or use of imported products be limited to an amount related to the volume or
value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable
under domestic laws or under administrative rulings, or compliance with which is necessary to obtain an
advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local production that it exports;
(b) the importation by an enterprise of products used in or related to its local production by restricting its
access to foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in terms of volume or value of
products, or in terms of a preparation of volume or value of its local production. (Annex to the Agreement on
Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal Documents, p.22125, emphasis
supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any other contracting
party shall be accorded treatment no less favorable than that accorded to like products of national
origin in respect of laws, regulations and requirements affecting their internal sale, offering for sale,
purchase, transportation, distribution or use. the provisions of this paragraph shall not prevent the application
of differential internal transportation charges which are based exclusively on the economic operation of the
means of transport and not on the nationality of the product. (Article III, GATT 1947, as amended by the
Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to
paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal
Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no less favourable than that it
accords to its own nationals with regard to the protection of intellectual property... (par. 1, Article 3,
Agreement on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal
Instruments, p.25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out therein,
each Member shall accord to services and service suppliers of any other Member, in respect of all measures
affecting the supply of services, treatment no less favourable than it accords to its own like services and
service suppliers.
2. A Member may meet the requirement of paragraph I by according to services and service suppliers of any
other Member, either formally identical treatment or formally different treatment to that it accords to its own
like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies
the conditions of completion in favour of services or service suppliers of the Member compared to like
services or service suppliers of any other Member. (Article XVII, General Agreement on Trade in Services,
Vol. 28, Uruguay Round Legal Instruments, p.22610 emphasis supplied).
It is petitioners position that the foregoing national treatment and parity provisions of the WTO Agreement
place nationals and products of member countries on the same footing as Filipinos and local products, in
contravention of the Filipino First policy of the Constitution. They allegedly render meaningless the phrase
effectively controlled by Filipinos. The constitutional conflict becomes more manifest when viewed in the
context of the clear duty imposed on the Philippines as a WTO member to ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed agreements.
[20]
Petitioners further argue that these provisions contravene constitutional limitations on the role exports
play in national development and negate the preferential treatment accorded to Filipino labor, domestic
materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are not
self-executing and merely set out general policies; (2) that these nationalistic portions of the Constitution
invoked by petitioners should not be read in isolation but should be related to other relevant provisions of
Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict
with the Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect developing
countries like the Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a declaration of principles and state policies. The counterpart
of this article in the 1935 Constitution[21] is called the basic political creed of the nation by Dean Vicente
Sinco.[22] These principles in Article II are not intended to be self-executing principles ready for enforcement
through the courts.[23] They are used by the judiciary as aids or as guides in the exercise of its power of
judicial review, and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan,
Incorporated vs. Morato,[24] the principles and state policies enumerated in Article II and some sections of
Article XII are not self-executing provisions, the disregard of which can give rise to a cause of action in the
courts.They do not embody judicially enforceable constitutional rights but guidelines for legislation.
In the same light, we held in Basco vs. Pagcor[25] that broad constitutional principles need legislative
enactments to implement them, thus:
On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of
Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article
XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles and
policies. As such, they are basically not self-executing, meaning a law should be passed by Congress to
clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the directives of the article, the available
remedy was not judicial but political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of broad constitutional principles are
sourced from basic considerations of due process and the lack of judicial authority to wade into the uncharted
ocean of social and economic policy making. Mr. Justice Florentino P. Feliciano in his concurring opinion
in Oposa vs. Factoran, Jr.,[26] explained these reasons as follows:
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. 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. (Emphases 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.
Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain Balanced
Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating
to the national economy and patrimony, should be read and understood in relation to the other sections in said
article, especially Secs. 1 and 13 thereof which read:
Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the
people; and an expanding productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development and
agrarian reform, through industries that make full and efficient use of human and natural resources, and
which are competitive in both domestic and foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum
opportunity to develop. x x x
xxxxxxxxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic development,
as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the
people; and
3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony[27] and in the use of Filipino labor, domestic materials and
locally-produced goods; (2) by mandating the State to adopt measures that help make them competitive;
[28]
and (3) by requiring the State to develop a self-reliant and independent national economy effectively
controlled by Filipinos.[29] In similar language, the Constitution takes into account the realities of the outside
world as it requires the pursuit of a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity; [30] and speaks of industries which are
competitive in both domestic and foreign markets as well as of the protection of Filipino enterprises against
unfair foreign competition and trade practices.
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al.,
[31]
this Court held that Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or rules
for its enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable. However, as the constitutional provision itself states, it is
enforceable only in regard to the grants of rights, privileges and concessions covering national economy and
patrimony and not to every aspect of trade and commerce. It refers to exceptions rather than the rule. The
issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is
whether, as a rule, there are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the
bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair.[32] In other words, the Constitution did not intend to pursue an
isolationist policy. It did not shut out foreign investments, goods and services in the development of the
Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on
the basis of equality and reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak
and developing economies, which comprise the vast majority of its members. Unlike in the UN where major
states have permanent seats and veto powers in the Security Council, in the WTO, decisions are made on the
basis of sovereign equality, with each members vote equal in weight to that of any other. There is no WTO
equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and the
General Council shall be taken by the majority of the votes cast, except in cases of interpretation of the
Agreement or waiver of the obligation of a member which would require three fourths vote. Amendments
would require two thirds vote in general. Amendments to MFN provisions and the Amendments provision
will require assent of all members. Any member may withdraw from the Agreement upon the expiration of
six months from the date of notice of withdrawals.[33]
Hence, poor countries can protect their common interests more effectively through the WTO than through
one-on-one negotiations with developed countries. Within the WTO, developing countries can form powerful
blocs to push their economic agenda more decisively than outside the Organization. This is not merely a
matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying the
WTO Agreement recognize the need of developing countries like the Philippines to share in the growth in
international trade commensurate with the needs of their economic development. These basic principles are
found in the preamble[34] of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be conducted with a
view to raising standards of living, ensuring full employment and a large and steadily growing volume of real
income and effective demand, and expanding the production of and trade in goods and services, while
allowing for the optimal use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance the means for doing so in
a manner consistent with their respective needs and concerns at different levels of economic development,
Recognizing further that there is need for positive efforts designed to ensure that developing countries, and
especially the least developed among them, secure a share in the growth in international trade commensurate
with the needs of their economic development,
Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination
of discriminatory treatment in international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts, and
all of the results of the Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying this multilateral trading
system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles,
the WTO Agreement grants developing countries a more lenient treatment, giving their domestic industries
some protection from the rush of foreign competition. Thus, with respect to tariffs in general, preferential
treatment is given to developing countries in terms of the amount of tariff reduction and the period within
which the reduction is to be spread out. Specifically, GATT requires an average tariff reduction rate of 36%
for developed countries to be effected within a period of six (6) years while developing countries -- including
the Philippines -- are required to effect an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to agricultural
products by 20% over six (6) years, as compared to only 13% for developing countries to be effected within
ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their
budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a
period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of that
prescribed for developed countries and a longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices
including anti-dumping measures, countervailing measures and safeguards against import surges. Where
local businesses are jeopardized by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the statement that under the WTO, local industries and
enterprises will all be wiped out and that Filipinos will be deprived of control of the economy. Quite the
contrary, the weaker situations of developing nations like the Philippines have been taken into account; thus,
there would be no basis to say that in joining the WTO, the respondents have gravely abused their
discretion.True, they have made a bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside on the ground of grave abuse of discretion,
simply because we disagree with it or simply because we believe only in other economic policies. As earlier
stated, the Court in taking jurisdiction of this case will not pass upon the advantages and disadvantages of
trade liberalization as an economic policy. It will only perform its constitutional duty of determining whether
the Senate committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant and independent national economy [35] does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither economic
seclusion nor mendicancy in the international community. As explained by Constitutional Commissioner
Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or economic
seclusion; rather, it means avoiding mendicancy in the international community. Independence refers to the
freedom from undue foreign control of the national economy, especially in such strategic industries as in the
development of natural resources and public utilities.[36]
The WTO reliance on most favored nation, national treatment, and trade without discrimination cannot be
struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy based on equality and reciprocity, [37] the fundamental law
encourages industries that are competitive in both domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of
robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and
Filipino enterprises have shown capability and tenacity to compete internationally. And given a free trade
environment, Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it
contain any specific pronouncement that Filipino companies should be pampered with a total
proscription of foreign competition. On the other hand, respondents claim that WTO/GATT aims to make
available to the Filipino consumer the best goods and services obtainable anywhere in the world at the most
reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor the general
welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare because it will -- as promised by its
promoters -- expand the countrys exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable
rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers, for which they are answerable
to our people during appropriate electoral exercises. Such questions and the answers thereto are not subject to
judicial pronouncements based on grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in
1987. That does not mean however that the Charter is necessarily flawed in the sense that its framers might
not have anticipated the advent of a borderless world of business. By the same token, the United Nations was
not yet in existence when the 1935 Constitution became effective. Did that necessarily mean that the then
Constitution might not have contemplated a diminution of the absoluteness of sovereignty when the
Philippines signed the UN Charter, thereby effectively surrendering part of its control over its foreign
relations to the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of
contemporary events. They should be interpreted to cover even future and unknown circumstances. It is to
the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the same
time bend with the refreshing winds of change necessitated by unfolding events. As one eminent political law
writer and respected jurist[38] explains:
The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and
framework only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not in a
twinkling by mandate of our delegates, but slowly in the crucible of Filipino minds and hearts, where it will
in time develop its sinews and gradually gather its strength and finally achieve its substance. In fine, the
Constitution cannot, like the goddess Athena, rise full-grown from the brow of the Constitutional
Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society it seeks to re-
structure and march apace with the progress of the race, drawing from the vicissitudes of history the
dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law attuned to
the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed Agreements. [39] Petitioners maintain
that this undertaking unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative
power which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of the
Philippines. It is an assault on the sovereign powers of the Philippines because this means that Congress
could not pass legislation that will be good for our national interest and general welfare if such legislation
will not conform with the WTO Agreement, which not only relates to the trade in goods x x x but also to the
flow of investments and money x x x as well as to a whole slew of agreements on socio-cultural matters x x
x.[40]
More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged
in the Congress.[41] And while the Constitution allows Congress to authorize the President to fix tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts, such authority is subject
to specified limits and x x x such limitations and restrictions as Congress may provide, [42] as in fact it did
under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on
this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not
envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and
State Policies, the Constitution adopts the generally accepted principles of international law as part of the law
of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all
nations."[43] By the doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws. [44] One of the oldest and
most fundamental rules in international law is pacta sunt servanda -- international agreements must be
performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties x x x. A state which has contracted valid international obligations is bound to make
in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken.[45]
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary
act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or
derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning
such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the
termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations. [46] The sovereignty of a state therefore cannot in fact and in
reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very
nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put
by John F. Kennedy, Today, no nation can build its destiny alone. The age of self-sufficient nationalism is
over. The age of interdependence is here.[47]
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to
restrict its sovereign rights under the concept of sovereignty as auto-limitation. 47-A Under Article 2 of the UN
Charter, (a)ll members shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action. Such assistance includes payment of its corresponding
share not merely in administrative expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money used
by the United Nations Emergency Force in the Middle East and in the Congo were expenses of the United
Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to
appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or
not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges
and immunities, thereby limiting again the exercise of sovereignty of members within their own
territory. Another example: although sovereign equality and domestic jurisdiction of all members are set
forth as underlying principles in the UN Charter, such provisos are however subject to enforcement measures
decided by the Security Council for the maintenance of international peace and security under Chapter VII of
the Charter. A final example: under Article 103, (i)n the event of a conflict between the obligations of the
Members of the United Nations under the present Charter and their obligations under any other international
agreement, their obligation under the present charter shall prevail, thus unquestionably denying the
Philippines -- as a member -- the sovereign power to make a choice as to which of conflicting obligations, if
any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international pacts -- both bilateral
and multilateral -- that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor
General in his Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed,
among others, to exempt from tax, income received in the Philippines by, among others, the Federal Reserve
Bank of the United States, the Export/Import Bank of the United States, the Overseas Private Investment
Corporation of the United States. Likewise, in said convention, wages, salaries and similar remunerations
paid by the United States to its citizens for labor and personal services performed by them as employees or
officials of the United States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation with
respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all customs
duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular equipment, spare
parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs duties,
excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils, spare parts,
regular equipment, stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the same
privileges as those granted to Japanese and Korean air carriers under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted
Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn in the Philippines not
exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals from the requirement of obtaining transit and
visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special
Missions in the Philippines are inviolable and its agents can not enter said premises without consent of the
Head of Mission concerned. Special Missions are also exempted from customs duties, taxes and related
charges.
(k) Multilateral Convention on the Law of Treaties. In this convention, the Philippines agreed to be governed
by the Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International
Court of Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the
interpretation of a treaty, any question of international law, the existence of any fact which, if established,
would constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of
taxation, eminent domain and police power. The underlying consideration in this partial surrender of
sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of the
sea, or trade, constrain domestic political sovereignty through the assumption of external obligations. But
unless anarchy in international relations is preferred as an alternative, in most cases we accept that the
benefits of the reciprocal obligations involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined substantive norms
and objective dispute resolution procedures reduce the risks of larger countries exploiting raw economic
power to bully smaller countries, by subjecting power relations to some form of legal ordering. In addition,
smaller countries typically stand to gain disproportionately from trade liberalization. This is due to the simple
fact that liberalization will provide access to a larger set of potential new trading relationship than in case of
the larger country gaining enhanced success to the smaller countrys market.[48]
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines adopts the generally accepted principles
of international law as part of the law of the land and adheres to the policy of x x x cooperation and amity
with all nations.
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [49]intrudes on the power of the Supreme
Court to promulgate rules concerning pleading, practice and procedures.[50]
To understand the scope and meaning of Article 34, TRIPS, [51] it will be fruitful to restate its full text as
follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in
paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial
authorities shall have the authority to order the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members shall provide, in at least one of the
following circumstances, that any identical product when produced without the consent of the patent owner
shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the
patent has been unable through reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the
alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition
referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (note the words in the absence of
proof to the contrary) presumption that a product shown to be identical to one produced with the use of a
patented process shall be deemed to have been obtained by the (illegal) use of the said patented process, (1)
where such product obtained by the patented product is new, or (2) where there is substantial likelihood that
the identical product was made with the use of the said patented process but the owner of the patent could not
determine the exact process used in obtaining such identical product. Hence, the burden of proof
contemplated by Article 34 should actually be understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly understood, actually refers to the burden of
evidence (burden of going forward) placed on the producer of the identical (or fake) product to show that his
product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof since, regardless of the
presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the
existence of the alleged identical product, the fact that it is identical to the genuine one produced by the
patented process and the fact of newness of the genuine product or the fact of substantial likelihood that the
identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as the present law on the
subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar
presumption in cases of infringement of patented design or utility model, thus:
SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility model for the purpose of trade or industry in the article
or product and in the making, using or selling of the article or product copying the patented design or utility
model. Identity or substantial identity with the patented design or utility model shall constitute evidence of
copying. (underscoring supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies
only if (1) the product obtained by the patented process is NEW or (2) there is a substantial likelihood that
the identical product was made by the process and the process owner has not been able through reasonable
effort to determine the process used. Where either of these two provisos does not obtain, members shall be
free to determine the appropriate method of implementing the provisions of TRIPS within their own internal
systems and processes.
By and large, the arguments adduced in connection with our disposition of the third issue -- derogation of
legislative power - will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than
justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial dispute settlement inherent in our judicial
system.
So too, since the Philippine is a signatory to most international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of procedure will not be substantial.[52]
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents Contained in the
Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes -- but not in the other
documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services -- is defective and insufficient and thus constitutes
abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because it is
in effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend that the second letter of the
President to the Senate[53] which enumerated what constitutes the Final Act should have been the subject of
concurrence of the Senate.
A final act, sometimes called protocol de clture, is an instrument which records the winding up of the
proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the
conference.[54] It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference
which may have taken place over several years. The text of the Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations is contained in just one page [55] in Vol. I of the 36-
volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as
representative of the Republic of the Philippines undertook:
"(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its
signatories, namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were
approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the
members can meet to give effect to those provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering the objectives of this Agreement. [56]
The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the
Philippines. It applies only to those 27 Members which have indicated in their respective schedules of
commitments on standstill, elimination of monopoly, expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and processing of information, and national treatment
with respect to access to payment, clearing systems and refinancing available in the normal course of
business.[57]
On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed included as
its integral parts,[58] as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct of trade relations among its
Members in matters to the agreements and associated legal instruments included in the Annexes to this
Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3 (hereinafter referred to
as Multilateral Agreements) are integral parts of this Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as
Plurilateral Trade Agreements) are also part of this Agreement for those Members that have accepted them,
and are binding on those Members. The Plurilateral Trade Agreements do not create either obligation or
rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as
GATT 1994) is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October 1947,
annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently rectified, amended or modified
(hereinafter referred to as GATT 1947).
It should be added that the Senate was well-aware of what it was concurring in as shown by the members
deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11, 1994, [59] the
senators of the Republic minutely dissected what the Senate was concurring in, as follows: [60]
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day hearing
of this Committee yesterday. Was the observation made by Senator Taada that what was submitted to the
Senate was not the agreement on establishing the World Trade Organization by the final act of the Uruguay
Round which is not the same as the agreement establishing the World Trade Organization?And on that basis,
Senator Tolentino raised a point of order which, however, he agreed to withdraw upon understanding that his
suggestion for an alternative solution at that time was acceptable. That suggestion was to treat the
proceedings of the Committee as being in the nature of briefings for Senators until the question of the
submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new... is he making a new submission
which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding, it
was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator Tolentino since they were the ones that
raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to the
Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the World
Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding and
Commitments in Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator Tolentino? And after him Senator
Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw
the draft of his earlier, and I think it now complies with the provisions of the Constitution, and with the Final
Act itself. The Constitution does not require us to ratify the Final Act. It requires us to ratify the Agreement
which is now being submitted. The Final Act itself specifies what is going to be submitted to with the
governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO Agreement
for the consideration of the respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification or
acceptance as whatever their constitutional procedures may provide but it is the World Trade Organization
Agreement. And if that is the one that is being submitted now, I think it satisfies both the Constitution and
the Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had
been adequately reflected in the journal of yesterdays session and I dont see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the abundance
of question. Then the new submission is, I believe, stating the obvious and therefore I have no further
comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking
this Courts constitutionally imposed duty to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of discretion
may be issued by the Court under Rule 65 of the Rules of Court when it is amply shown that petitioners have
no other plain, speedy and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction.[61] Mere abuse of discretion is not enough. It must be grave abuse of discretion as when
the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must
be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.[62] Failure on the part of the petitioner to show grave
abuse of discretion will result in the dismissal of the petition. [63]
In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of two
sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a constitutional
body independent and coordinate, and thus its actions are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are presented to overthrow such presumptions, this Court will
resolve every doubt in its favor. Using the foregoing well-accepted definition of grave abuse of discretion
and the presumption of regularity in the Senates processes, this Court cannot find any cogent reason to
impute grave abuse of discretion to the Senates exercise of its power of concurrence in the WTO Agreement
granted it by Sec. 21 of Article VII of the Constitution.[64]
It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor,
products, domestic materials and locally produced goods. But it is equally true that such principles -- while
serving as judicial and legislative guides -- are not in themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit
of a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity and the promotion of industries which are competitive in both domestic and
foreign markets, thereby justifying its acceptance of said treaty. So too, the alleged impairment of
sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the generally
accepted principles of international law as part of the law of the land and the adherence of the Constitution to
the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO
Agreement thereby making it a part of the law of the land is a legitimate exercise of its sovereign duty and
power. We find no patent and gross arbitrariness or despotism by reason of passion or personal hostility in
such exercise. It is not impossible to surmise that this Court, or at least some of its members, may even agree
with petitioners that it is more advantageous to the national interest to strike down Senate Resolution No.
97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its
decision. To do so would constitute grave abuse in the exercise of our own judicial power and
duty.Ineludably, what the Senate did was a valid exercise of its authority. As to whether such exercise was
wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the
elected policy makers and the people. As to whether the nation should join the worldwide march toward
trade liberalization and economic globalization is a matter that our people should determine in electing their
policy makers. After all, the WTO Agreement allows withdrawal of membership, should this be the political
desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance[65] where the East will become the dominant region of the world economically, politically and
culturally in the next century. He refers to the free market espoused by WTO as the catalyst in this coming
Asian ascendancy. There are at present about 31 countries including China, Russia and Saudi Arabia
negotiating for membership in the WTO. Notwithstanding objections against possible limitations on national
sovereignty, the WTO remains as the only viable structure for multilateral trading and the veritable forum for
the development of international trade law. The alternative to WTO is isolation, stagnation, if not economic
self-destruction. Duly enriched with original membership, keenly aware of the advantages and disadvantages SECOND DIVISION
of globalization with its on-line experience, and endowed with a vision of the future, the Philippines now [G.R. No. L-2662. March 26, 1949.]
straddles the crossroads of an international strategy for economic prosperity and stability in the new SHIGENORI KURODA, Petitioner, v. Major General RAFAEL JALANDONI, Brigadier General
millennium. Let the people, through their duly authorized elected officers, make their free choice. CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel
WHEREFORE, the petition is DISMISSED for lack of merit. PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT
SO ORDERED. PORT, Respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for Petitioner.
Fred Ruiz Castro, Federico Arenas, Mariano Yengco, Jr., Ricardo A. Arcilla, and S. Meville Hussey
for Respondents.

SYLLABUS
1. CONSTITUTIONAL LAW; VALIDITY OF EXECUTIVE ORDER NO. 68 ESTABLISHING A
NATIONAL WAR CRIMES OFFICE. Executive Order No. 68 which was issued by the President of the
Philippines on the 29th day of July, 1947, is valid in its section 3 that "The Philippines renounces war as an
instrument of national policy, and adopts the generally accepted principles of international law as part of the
law of the nation."
2. INTERNATIONAL LAW; VIOLATORS OF THE LAWS AND CUSTOMS OF WAR, OF HUMANITY
AND CIVILIZATION, LIABILITY AND RESPONSIBILITY OF. In accordance with the generally
accepted principles of international law of the present day, including the Hague Convention, the Geneva
Convention and significant precedents of international jurisprudence established by the United Nations, all
those persons, military of civilian, who have been guilty of planning, preparing or waging a war of
aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of
the laws and customs of war, of humanity and civilization, are held accountable therefor.
3. ID.; POWER OF THE PRESIDENT OF THE PHILIPPINES. IN the promulgation and enforcement of
Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted
principles and policies and international law which are part of our constitution.
4. CONSTITUTIONAL LAW; POWER OF PRESIDENT AS COMMANDER IN CHIEF OR ARMED
FORCES OF THE PHILIPPINES. The promulgation of said executive order is an exercise by the
President of his powers as Commander in Chief of all our armed forces.
5. ID.; ID.; The President as Commander in Chief is fully empowered to consummate this unfinished
aspects of war, namely, the trial and punishment of war criminals, through the issuance and enforcement of
Executive Order No. 68.
6. INTERNATIONAL LAW; HAGUE AND GENEVA CONVENTION FORM PART OF THE LAW OF
THE PHILIPPINES; EVEN IF THE PHILIPPINES WAS NOT SIGNATORY THEREOF, PROVISIONS OF
PHILIPPINE CONSTITUTION HAS BEEN COMPREHENSIVE TO THAT EFFECT. The rules and
regulations of the Hague and Geneva Conventions form part of and are wholly based on the generally
accepted principles of international law. In fact, these rules and principles were accepted by the two
belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules
and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the
conventions embodying them, for our Constitution has been deliberately general and extensive in its scope
and is not confined to the recognition of rules and principles of international law as contained in treaties to
which our government may have been or shall be a signatory.
7. id.; rights and obligations of a nation were not erased by assumption of full sovereignty RIGHT TO TRY
AND PUNISH CRIMES THERETOFORE COMMITTED. When the crimes charged against petitioner
were allegedly committed, the Philippines was under the sovereignty of the United States, and thus we were
equally bound together with the United Sates and with Japan, to the rights and obligations contained in the
treaties between the belligerent countries. These rights and obligations were not erased by our assumption of
full sovereignty. If at right, on our own, of trying and punishing those who committed crimes against our
people.
8. ID.; ID.; ID.; War crimes committed against our people and our government while we are a
Commonwealth, are triable and punishable by our present Republic.
9. MILITARY COMMISSION GOVERNED BY SPECIAL LAW. Military Commission is a special
military tribunal governed by a special law and not by the Rules of Court which govern ordinary civil courts.
10. MILITARY COMMISSION; COUNSEL APPEARING BEFORE IT NOT NECESSARILY A MEMBER
OF THE PHILIPPINE BAR. There is nothing in Executive Order No. 68 which requires that counsel
appearing before said commission must be attorneys qualified to practice law in the Philippines in
accordance with the Rules of Court. In fact, it is common in military tribunals that counsel for the parties are
usually military personnel who are neither attorneys nor even possessed of legal training.
11. ID.; TRIAL OF WAR CRIMES BEFORE PHILIPPINE COURTS; ALLOWANCE OF AMERICAN
ATTORNEYS TO REPRESENT UNITED STATES. The appointment of the two American attorneys is
not violative of our national sovereignty. It is only fair and proper that the United States, which has submitted
the vindication of crimes against her government and her people to a tribunal of our nation, should be
allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty,
it has not been by our government by the United States Government which has yielded to us the trial and
punishment of her enemies. The least that we could do in the spirit of comity is to allow them representation
in said trials.
12. ID.; ID.; ID. It is of common knowledge that the United States and its people have been equally, if not
more greatly, aggrieved by the crimes with which petitioner stands charged before the Military Commission.
It can be considered a privilege for our Republic that a leader nation should submit the vindication of the
honor of its citizens and its government to a military tribunal of our country.
13. ID.; JURISDICTION; SUPREME COURT WILL NOT INTERFERE WITH DUE PROCESSES OF
MILITARY COMMISSION. The Military Commission having been convened by virtue of a valid law,
with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and
having jurisdiction over the person of the petitioner by having said petitioner in its custody, this court will not
interfere with the due processes of such Military Commission.
Per PERFECTO, J., dissenting:
14. ATTORNEYS AT LAW; ALIENS CANNOT PRACTICE LAW. It appearing that Attys. Hussey and
Port are aliens and have not been authorized by the Supreme Court to practice law, they cannot appear as
prosecutors in a case pending before the War Crimes Commission.
15. CONSTITUTIONAL LAW; LEGISLATIVE POWER VESTED IN CONGRESS; EXCEPTION.
While there is no express provision in the fundamental law prohibiting the exercise of legislative power by
agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to
the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to
the veto power of the President, to his to suspend the writ of habeas corpus, to place any part of the
Philippines under martial law, to the rule-making power expressly vested by the Constitution in the Supreme
Court.
16. ID.; ID.; SCOPE OF POWERS OF DIFFERENT GOVERNMENTAL DEPARTMENTS. Because the
powers vested by our Constitution to the several departments of the government are in the nature of grants,
not a recognition of pre-existing powers, no department of the government may exercise any power or
authority not expressly granted by the Constitution or by law by virtue of express authority of the
Constitution.
17. ID.; ID.; POWER OF PRESIDENT TO PROMULGATE EXECUTIVE ORDER DEFINING AND
ALLOCATING JURISDICTION FOR PROSECUTION OF WAR CRIMES ON MILITARY
COMMISSION. The provision in Executive Order No. 68 (series of 1947) of the President of the
Philippines, that persons accused as war criminals shall be tried by military commission, is clearly legislative
in nature and intends to confer upon military commission jurisdiction to try all persons charged with war
crimes. But, the power to define and allocate jurisdiction for the prosecution of persons accused of crimes is
exclusively vested by the Constitution in Congress.
18. ID.; ID.; POWER TO ESTABLISH GOVERNMENT OFFICE. Executive Order No. establishes a
National War Crimes Office; but, the power to establish government offices is essentially legislative.
19. ID.; RULE-MAKING POWER OF SUPREME COURT; PRESIDENT HAS NO POWER, MUCH LESS
DELEGATE SUCH A POWER, TO PROVIDE RULES OF PROCEDURE FOR CONDUCT OF TRIALS.
Executive Order No. 68 provides rules of procedure for the conduct of trials before the War Crimes
Office. This provision on procedural subject constitutes a usurpation of the rule-making power vested by the
Constitution in the Supreme Court. It further authorizes military commissions to adopt additional rules of
procedure. If the President of the Philippines cannot exercise the rule making power vested by the
Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military
commissions.
20. ID.; LEGISLATIVE POWER VESTED IN CONGRESS; USURPATION OF POWER TO
APPROPRIATE FUNDS. Executive Order No. 68 appropriates funds for the expenses of the National
War Crimes Office. This constitutes another usurpation of legislative power, as the power to vote
appropriations belongs to Congress.
21. ID.; EMERGENCY POWERS OF PRESIDENT UNDER COMMONWEALTH ACTS NOS. 600, 620
AND 671. Commonwealth Acts Nos. 600, 620 and 671, granting the President of the Philippines
emergency powers to promulgate rules and regulations during national emergency has ceased to have effect
since the liberation of the Philippines, or at latest, upon the surrender of Japan on September 2, 1945. The
absurdity of the contention that these emergency acts continued in effect even after the surrender of Japan
cannot be gainsaid. Only a few months after liberation, and even before the surrender of Japan, the Congress
started to function normally. To let the hypothesis on continuance prevail will result in the existence of two
distinct, separate and independent legislative organs. the Congress and the President of the Philippines.
Should there be any disagreement between Congress and the President, a possibility that no one can dispute,
the President may take advantage of the long recess of Congress (two-thirds of every year) to repeal and
overrule legislative enactments of Congress, and may set up a veritable system of dictatorship, absolutely
repugnant to the letter and spirit of the Constitution.
22. STATUTORY CONSTRUCTION; PRESUMPTION THAT LEGISLATIVE BODY DID NOT INTEND
TO VIOLATE CONSTITUTION. It has never been the purpose of the National Assembly to extend the
delegation (embodied in Commonwealth Acts Nos. 600, 620 and 671) beyond the emergency created by war,
as to extent it farther would be violate of the express provisions of the Constitution. We are of the opinion
that there is no doubt on this question; but, if there could still be any, the same should be resolved in favor of
the presumption that the National Assembly did not intend to violate the fundamental law.
23. CONSTITUTIONAL LAW; DUE PROCESS AND EQUAL PROTECTION OF LAW. Executive
Order No. 68 violates the fundamental guarantees of due process and equal protection of the law, because it
permits the admission of many kinds of evidence by which no innocent person can afford to get acquittal,
and by which it is impossible to determine whether an accused is guilt or not beyond all reasonable doubt.
DECISION
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General
of the Japanese Imperial Forces in the Philippines during a period covering 1943 and 1944, who is now
charged before a Military Commission convened by the Chief of Staff of the Armed Forces of the
Philippines, with having unlawfully disregarded and failed "to discharge his duties as such commander to
control the operations of members of his command, permitting them to commit brutal atrocities and other
high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces, in violation of the
laws and customs of war" comes before this Court seeking to establish the illegality of Executive Order
No. 68 of the President of the Philippines; to enjoin and prohibit respondents Melville S. Hussey and Robert
Port from participating in the prosecution of petitioners case before the Military Commission; and to
permanently prohibit respondents from proceeding with the case of petitioner.
In support of his case, petitioner tenders the following principal arguments:
First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provisions of our
constitutional law but also our local laws, to say nothing of the fact (that) the Philippines is not a signatory
nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore,
petitioner is charged of crimes not based on law, national and international." Hence, petitioner argues
"That in view of the fact that this commission has been empanelled by virtue of an unconstitutional law and
an illegal order, this commission is without jurisdiction to try herein petitioner."
Second. That the participation in the prosecution of the case against petitioner before the Commission in
behalf of the United States of America, of attorneys Melville Hussey and Robert Port, who are not attorneys
authorized by the Supreme Court to practice law in the Philippines, is a diminution of our personality as an
independent state, and their appointments as prosecutors are a violation of our Constitution for the reason
that they are not qualified to practice law in the Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecutors, the United States not being a
party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office and prescribing rules and regulations
governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th day
of July, 1947. This Court holds that this order is valid and constitutional. Article 2 of our Constitution
provides in its section 3, that
"The Philippines renounces war as an instrument of national policy, and adopts the generally accepted
principles of international law as part of the law of the nation."
In accordance with the generally accepted principles of international law of the present day, including the
Hague Convention, the Geneva Convention and significant precedents of international jurisprudence
established by the United Nations, all those persons, military or civilian, who have been guilty of planning,
preparing or waging a war of aggression and of the commission of crimes and offenses consequential and
incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held
accountable therefor. Consequently, in the promulgation and enforcement of Executive Order No. 68, the
President of the Philippines has acted in conformity with the generally accepted principles and policies of
international law which are part of our Constitution.
The promulgation of said executive order is an exercise by the President of his powers as Commander in
Chief of all our armed forces, as upheld by this Court in the case of Yamashita v. Styer L-129, 42 Off. Gaz.,
654) 1 when we said
"War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of
war may remain pending which should be disposed of as in time of war.An important incident to a conduct
of war is the adoption of measures by the military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our
military effort have violated the law of war. (Ex parte Quirin, 317 U. S., 1; 63 Sup. Ct., 2.) Indeed, the power
to create a military commission for the trial and punishment of war criminals is an aspect of waging war.
And, in the language of a writer, a military commission has jurisdiction so long as a technical state of war
continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty
of peace, and may extend beyond, by treaty agreement. (Cowls, Trial of War Criminals by Military
Tribunals, American Bar Association Journal, June, 1944.)"
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished
aspect of war, namely, the trial and punishment of war criminals, through the issuance and enforcement of
Executive Order No. 68.
Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts committed
in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory
to the first and signed the second only in 1947. It cannot be denied that the rules and regulations of the Hague
and Geneva conventions form part of and are wholly based on the generally accepted principles of
international law. In fact, these rules and principles were accepted by the two belligerent nations, the United
States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form
part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them,
for our Constitution has been deliberately general and extensive in its scope and is not confined to the
recognition of rules and principles of international law as contained in treaties to which our government may
have been or shall be a signatory.
Furthermore, when the crimes charged against petitioner were allegedly committed, the Philippines was
under the sovereignty of the United States, and thus we were equally bound together with the United States
and with Japan, to the rights and obligations contained in the treaties between the belligerent countries. These
rights and obligations were not erased by our assumption of full sovereignty. If at all, our emergence as a free
state entitles us to enforce the right, on our own, of trying and punishing those who committed crimes against
our people. In this connection, it is well to remember what we have said in the case of Laurel v. Misa (76
Phil., 372)
". . . The change of our form of government from Commonwealth to Republic does not affect the prosecution
of those charged with the crime of treason committed during the Commonwealth, because it is an offense
against the same government and the same sovereign people . . ."
By the same token, war crimes committed against our people and our government while we were a
Commonwealth, are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys, namely, Melville S. Hussey and Robert
Port, in the prosecution of his case, on the ground that said attorneys are not qualified to practice law in the
Philippines in accordance with our Rules of Court and the appointment of said attorneys as prosecutors is
violative of our national sovereignty.
In the first place, respondent Military Commission is a special military tribunal governed by a special law
and not by the Rules of Court which govern ordinary civil courts. It has already been shown that Executive
Order No. 68 which provides for the organization of such military commissions is a valid and constitutional
law. There is nothing in said executive order which requires that counsel appearing before said commissions
must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In fact, it
is common in military tribunals that counsel for the parties are usually military personnel who are neither
attorneys nor even possessed of legal training.
Secondly, the appointment of the two American attorneys is not violative of our national sovereignty. It is
only fair and proper that the United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation, should be allowed representation in the trial of those
very crimes. If there has been any relinquishment of sovereignty, it has not been by our government but by
the United States Government which has yielded to us the trial and punishment of her enemies. The least that
we could do in the spirit of comity is to allow them representation in said trials.
Alleging that the United States is not a party in interest in the case, petitioner challenges the personality of
attorneys Hussey and Port as prosecutors. It is of common knowledge that the United States and its people
have been equally, if not more greatly, aggrieved by the crimes with which petitioner stands charged before
the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit
the vindication of the honor of its citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having jurisdiction over the person
of the petitioner by having said petitioner in its custody, this Court will not interfere with the due processes
of such Military Commission.
Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor and Reyes, JJ., concur.
Separate Opinions
PERFECTO. J., dissenting:
A military commission was empaneled on December 1, 1948, to try Lt. Gen. Shigenori Kuroda for violation
of the laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice
law, were appointed prosecutors representing the American CIC in the trial of the case.
The commission was empaneled under the authority of Executive Order No. 68 of the President of the
Philippines, the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also
challenged the personality of Attorneys Hussey and Port to appear as prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948, in the name of the People of the
Philippines as accusers.
We will consider briefly the challenge against the appearance of Attorneys Hussey and Port. It appearing that
they are aliens and have not been authorized by the Supreme Court to practice law, there could not be any
question that said persons cannot appear as prosecutors in petitioners case, as with such appearance they
would be practicing law against the law.
Said violation vanishes, however, into insignificance at the side of the momentous questions involved in the
challenge against the validity of Executive Order No. 68. Said order is challenged on several constitutional
grounds. To get a clear idea of the questions raised, it is necessary to read the whole context of said order
which is reproduced as follows
"EXECUTIVE ORDER No. 68
"ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND
REGULATIONS GOVERNING THE TRIAL OF ACCUSED WAR CRIMINALS.
"I, Manuel Roxas, President of the Philippines, by virtue of the powers vested in me by the Constitution and
laws of the Philippines, do hereby establish a National War Crimes Office charged with the responsibility of
accomplishing the speedy trial of all Japanese accused of war crimes committed in the Philippines, and
prescribe the rules and regulations governing such trial.
"The National War Crimes Office is established within the Office of the Judge Advocate General of the Army
of the Philippines and shall function under the direction, supervision and control of the Judge Advocate
General. It shall proceed to collect from all available sources evidence of war crimes committed in the
Philippines from the commencement of hostilities by Japan in December, 1941, maintain a record thereof,
and bring about the prompt trial of the accused.
"The National War Crimes Office shall maintain direct liaison with the Legal Section, General Headquarters,
Supreme Commander for the Allied Powers, and shall exchange with the said Office information and
evidence of war crimes.
"The following rules and regulations shall govern the trial of persons accused as war criminals
"I. ESTABLISHMENT OF MILITARY COMMISSIONS
"(a) General. Persons accused as war criminals shall be tried by military commissions to be convened by,
or under the authority of, the President of the Philippines.
"II. JURISDICTION
"(a) Over Persons. The military commissions appointed hereunder shall have jurisdiction over all persons
charged with war crimes who are in the custody of the convening authority at the time of the trial.
"(b) Over Offenses. The military commissions established hereunder shall have jurisdiction over all
offenses including, but not limited to, the following
"(1) The planning, preparation, initiation or waging of a war of aggression or a war in violation of
international treaties, agreements or assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing.
"(2) Violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-
treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied
territory; murder or ill-treatment of prisoners of war or internees or persons on the seas or elsewhere;
improper treatment of hostages; plunder of public or private property; wanton destruction of cities, towns or
villages; or devastation not justified by military necessity.
"(3) Murder, extermination, enslavement, deportation and other inhuman acts committed against civilian
populations before or during the war, or persecutions on political, racial or religious grounds in execution of,
or in connection with, any crime defined herein, whether or not in violation of the local laws.
"III. MEMBERSHIP OF COMMISSIONS
"(a) Appointment. The members of each military commission shall be appointed by the President of the
Philippines, or under authority delegated by him. Alternates may be appointed by the convening authority.
Such alternates shall attend all sessions of the commission, and in case of illness or other incapacity of any
principal member, an alternate shall take the place of that member. Any vacancy among the members or
alternates, occurring after a trial has begun, may be filed by the convening authority, but the substance of all
proceedings had and evidence taken in that case shall be made known to the said new member or alternate.
This fact shall be announced by the president of the commission in open court.
"(b) Number of Members. Each commission shall consist of not less than three (3) members.
"(c) Qualifications. The convening authority shall appoint to the commission persons whom he determines
to be competent to perform the duties involved and not disqualified by personal interest or prejudice,
provided that no person shall be appointed to hear a case in which he personally investigated, or wherein his
presence as a witness is required. One specially qualified member shall be designated as the law member
whose ruling is final in so far as concerns the commission on an objection to the admissibility of evidence
offered during the trial.
"(d) Voting. Except as to the admissibility of evidence, all rulings and findings of the Commission shall be
by majority vote, except that conviction and sentence shall be by the affirmative vote of not less than two-
thirds (2/3) of the members present.
"(e) Presiding Member. In the event that the convening authority does not name one of the members as the
presiding member, the senior officer among the members of the Commission present shall preside.
"IV. PROSECUTORS
"(a) Appointment. The convening authority shall designate one or more persons to conduct the
prosecution before each commission.
"(b) Duties. The duties of the prosecutors are
"(1) To prepare and present charges and specifications for reference to a commission.
"(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred for
trial.
V. POWERS AND PROCEDURE OF COMMISSIONS
"(a) Conduct of the Trial. A Commission shall
"(1) Confine each trial strictly to a fair and expeditious hearing on the issues raised by the charges, excluding
irrelevant issues or evidence and preventing any unnecessary delay or interference.
"(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor.
"(3) Hold public sessions except when otherwise decided by the commission.
"(4) Hold each session at such time and place as it shall determine, or as may be directed by the convening
authority.
"(b) Rights of the Accused. The accused shall be entitled
"(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise
the accused of each offense charged.
"(2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel
of his own choice, or to conduct his own defense.
"(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his
defense, and cross- examine each adverse witness who personally appears before the commission.
"(4) To have the substance of the charges and specifications, the proceedings and any documentary evidence
translated, when he is unable otherwise to understand them.
"(c) Witnesses. The Commission shall have power
"(1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations to
witnesses and other persons and to question witnesses.
"(2) To require the production of documents and other evidentiary material.
"(3) To delegate to the Prosecutors appointed by the convening authority the powers and duties set forth in
(1) and (2) above.
"(4) To have evidence taken by a special commissioner appointed by the commission.
"(d) Evidence.
"(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or
disproving the charge, or such as in the commissions opinion would have probative value in the mind of a
reasonable man. The commission shall apply the rules of evidence and pleading set forth herein with the
greatest liberality to achieve expeditious procedure. In particular, and without limiting in any way the scope
of the foregoing general rules, the following evidence may be admitted
"(a) Any document, irrespective of its classification, which appears to the commission to have been signed or
issued by any officer, department, agency or member of the armed forces of any Government without proof
of the signature or of the issuance of the document.
"(b) Any report which appears to the commission to have been signed or issued by the International Red
Cross or a member thereof, or by a doctor of medicine or a member of any medical service personnel, or by
any investigator or intelligence officer, or by any other person whom the commission considers as possessing
knowledge of the matters contained in the report.
"(c) Affidavits, depositions or other signed statements.
"(d) Any diary, letter or other document, including sworn or unsworn statements, appearing to the
commission to contain information relating to the charge.
"(e) A copy of any document or other secondary evidence of the contents, if the original is not immediately
available.
"(2) The commission shall take judicial notice of facts of common knowledge, official government
documents of any nation, and the proceedings, records and findings of military or other agencies of any of
the United Nations.
"(3) A commission may require the prosecution and the defense to make a preliminary offer of proof,
whereupon the commission may rule in advance on the admissibility of such evidence.
"(4) The official position of the accused shall not absolve him from responsibility, nor be considered in
mitigation of punishment. Further, action pursuant to an order of the accuseds superior, or of his
Government, shall not constitute a defense, but may be considered in mitigation of punishment if the
commission determines that justice so requires.
"(5) All purported confessions or statements of the accused shall be admissible in evidence without any
showing that they were voluntarily made. If it is shown that such confession or statement was procured by
means which the commission believes to have been of such a character that they may have caused the
accused to make a false statement, the commission may strike out or disregard any such portion thereof as
was so procured.
"(e) Trial Procedure. The proceedings of each trial shall be conducted substantially as follows, unless
modified by the commission to suit the particular circumstances
"(1) Each charge and specification shall be read, or its substance stated, in open court.
"(2) The presiding member shall ask each accused whether he pleads Guilty or Not guilty. Executive Order No. 68 is a veritable piece of legislative measure, without the benefit of congressional
"(3) The prosecution shall make its opening statement.
"(4) The presiding member may, at this or any other time, require the prosecutor to state what evidence he
proposes to submit to the commission and the commission thereupon may rule upon the admissibility of such
evidence.
"(5) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the case
for the prosecution, the commission may, on motion of the defense for a finding of not guilty, consider and
rule whether the evidence before the commission supports the charges against the accused. The commission
may defer action on any such motion and permit or require the prosecution to reopen its case and produce
any further available evidence.
"(6) The defense may make an opening statement prior to presenting its case. The presiding member may, at
this or any other time, require the defense to state what evidence it proposes to submit to the commission,
where upon the commission may rule upon the admissibility of such evidence.
"(7) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the prosecution
and defense may introduce such evidence in rebuttal as the commission may rule as being admissible.
"(8) The defense, and thereafter the prosecution, shall address the commission.
"(9) The commission thereafter shall consider the case in closed session and unless otherwise directed by the
convening authority, announce in open court its judgment and sentence, if any. The commission may state the
reasons on which judgment is based.
"(f) Record of Proceedings. Each commission shall make a separate record of its proceedings in the trial
of each case brought before it. The record shall be prepared by the prosecutor under the direction of the
commission and submitted to the defense counsel. The commission shall be responsible for its accuracy.
Such record; certified by the presiding member of the commission or his successor, shall be delivered to the
convening authority as soon as possible after the trial.
"(g) Sentence. The commission may sentence an accused, upon conviction, to death by hanging or
shooting, imprisonment for life or for any less term, fine, or such other punishment as the commission shall
determine to be proper.
"(h) Approval of Sentence. No sentence of a military commission shall be carried into effect until
approved by the Chief of Staff: Provided, That no sentence of death or life imprisonment shall be carried into
execution until confirmed by the President of the Philippines. For the purpose of his review, the Chief of
Staff shall create a Board of Review to be composed of not more than three officers none of whom shall be
on duty with or assigned to the Judge Advocate Generals Office. The Chief of Staff shall have the authority
to approve, mitigate, remit in whole or in part, commute, suspend, reduce or otherwise alter the sentence
imposed, or (without prejudice to the accused) remand the case for rehearing before a new military
commission; but he shall not have authority to increase the severity of the sentence. Except as herein
otherwise provided, the judgment and sentence of a commission shall be final and not subject to review by
any other tribunal.
"VI. RULE-MAKING POWER
"Supplementary Rules and Forms. Each commission shall adopt rules and forms to govern its procedure,
not inconsistent with the provisions of this Order, or such rules and forms as may be prescribed by the
convening authority or by the President of the Philippines.
"VII. The amount of seven hundred thousand pesos is hereby set aside out of the appropriations for the Army
of the Philippines for use by the National War Crimes Office in the accomplishment of its mission as
hereinabove set forth, and shall be expended in accordance with the recommendations of the Judge Advocate
General as approved by the President. The buildings, textures, installations, messing, and billeting equipment
and other property heretofore used by the Legal Section, Manila Branch, of the General Headquarters,
Supreme Commander for the Allied Powers, which will be turned over by the United States Army to the
Philippine Government through the Foreign Liquidation Commission and the Surplus Property Commission
are hereby specifically reserved for use of the National War Crimes Office.
"Executive Order No. 64, dated August 16, 1940, is hereby repealed.
"Done in the City of Manila, this 29th day of July, in the year of Our Lord, nineteen hundred and forty-seven,
and of the Independence of the Philippines, the second.
"MANUEL ROXAS
"President of the Philippines
"By the President
"EMILIO ABELLO
"Chief of the Executive Office"
EXECUTIVE LEGISLATION
enactment.
The first question that is thrust at our face, spearheading a group of other no less important questions, is
whether or not the President of the Philippines may exercise the legislative power expressly vested in
Congress by the Constitution.
The Constitution provides
"The Legislative powers shall be vested in a Congress of the Philippines, which shall consist of a Senate and
a House of Representatives." (Section 1, Article VI.)
While there is no express provision in the fundamental law prohibiting the exercise of legislative power by
agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to
the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to
the veto power of the President of the Philippines, to the specific provisions which allow the President of the
Philippines to suspend the privileges of the writ of habeas corpus and to place any part of the Philippines
under martial law, and to the rule-making power expressly vested by the Constitution in the Supreme Court.
There cannot be any question that the members of the Constitutional Convention were believers in the
tripartite system of government as originally enunciated by Aristotle, further elaborated by Montesquieu and
accepted and practiced by modern democracies, especially the United States of America, whose Constitution,
after which ours has been patterned, has allocated the three powers of government legislative, executive,
judicial to distinct and separate departments of government.
Because the powers vested by our Constitution to the several departments of the government are in the nature
of grants, not a recognition of pre-existing powers, no department of government may exercise any power or
authority not expressly granted by the Constitution or by law by virtue of express authority of the
Constitution.
Executive Order No. 68 establishes a National War Crimes Office, and the power to establish government
office is essentially legislative.
The order provides that persons accused as war criminals shall be tried by military commissions. Whether
such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military
commissions jurisdiction to try all persons charged with war crimes. The power to define and allocate
jurisdiction for the prosecution of persons accused of any crime is exclusively vested by the Constitution in
Congress.
It provides rules of procedure for the conduct of trials. This provision on procedural subject constitutes a
usurpation of the rule- making power vested by the Constitution in the Supreme Court.
It authorizes military commissions to adopt additional rules of procedure. If the President of the Philippines
cannot exercise the rule-making power vested by the Constitution in the Supreme Court, he cannot, with
more reason, delegate that power to military commissions.
It appropriates the sum of P700,000 for the expenses of the National War Crimes Office established by the
said Executive Order No. 68. This constitutes another usurpation of legislative power as the power to vote
appropriations belongs to Congress.
Executive Order No. 68, is, therefore, null and void, because, through it, the President of the Philippines
usurped powers expressly vested by the Constitution in Congress and in the Supreme Court.
Challenged to show the constitutional or legal authority under which the President of the Philippines issued
Executive Order No. 68, respondents could not give any definite answer. They attempted, however, to
suggest that the President of the Philippines issued Executive Order No. 68 under the emergency powers
granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and
Commonwealth Act No. 671, both of which are transcribed below
"COMMONWEALTH ACT No. 600
"AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULES AND REGULATIONS TO SAFEGUARD THE INTEGRITY OF THE
PHILIPPINES AND TO INSURE THE TRANQUILLITY OF ITS INHABITANTS.
"Be it enacted by the National Assembly of the Philippines
"SECTION 1. The existence of war in many parts of the world has created a national emergency which
makes it necessary to invest the President of the Philippines with extraordinary powers in order to safeguard
the integrity of the Philippines and to insure the tranquillity of its inhabitants, by suppressing espionage,
lawlessness, and all subversive activities, by preventing or relieving unemployment, by insuring to the people
adequate shelter and clothing and sufficient food supply, and by providing means for the speedy evacuation
of the civilian population, the establishment of an air protective service, and the organization of volunteer
guard units, and to adopt such other measures as he may deem necessary for the interest of the public. To
carry out this policy the President is authorized to promulgate rules and regulations which shall have the
force and effect of law until the date of adjournment of the next regular session of the First Congress of the
Philippines, unless sooner amended or repealed by the Congress of the Philippines. Such rules and
regulations may embrace the following objects: (1) to suppress espionage and other subversive activities; (2)
to require all able- bodied citizens (a) when not engaged in any lawful occupation, to engage in farming or
other productive activities or (b) to perform such services as may be necessary in the public interest; (3) to
take over farm lands in order to prevent failure or shortage of crops and avert hunger and destitution; (4) to
take over industrial establishments in order to insure adequate production, controlling wages and profits
therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the unwarranted suspension of
work in productive enterprises or in the interest of national security; (6) to regulate the normal hours of work
for wage-earning and salaried employees in industrial or business undertakings of all kinds; (7) to insure an
even distribution of labor among the productive enterprises; (8) to commander ships and other means of
transportation in order to maintain, as much as possible, adequate and continued transportation facilities; (9)
to requisition and take over any public service or enterprise for use or operation by the Government; (10) to
regulate rents and the prices of articles or commodities of prime necessity, both imported and locally
produced or manufactured; and (11) to prevent, locally or generally, scarcity, monopolization, hoarding,
injurious speculations, and private controls affecting the supply, distribution, and movement of foods,
clothing, fuel, fertilizers, chemicals, building materials, implements, machinery, and equipment required in
agriculture and industry, with power to requisition these commodities subject to the payment of just
compensation. (As amended by Com. Act No. 620.)
"SEC. 2. For the purpose of administering this Act and carrying out its objectives, the President may
designate any officer, without additional compensation, or any department, bureau, office, or instrumentality
of the National Government.
"SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of any
of the rules or regulations promulgated by the President under the authority of section one of this Act shall be
punished by imprisonment of not more than ten years or by a fine of not more than ten thousand pesos, or by
both. If such violation is committed by a firm or corporation, the manager, managing director, or person
charged with the management of the business of such firm, or corporation shall be criminally responsible
therefor.
"SEC. 4. The President shall report to the National Assembly within the first ten days from the date of the
opening of its next regular session whatever action has been taken by him under the authority herein granted.
"SEC. 5. To carry out the purposes of this Act, the President is authorized to spend such amounts as may be
necessary from the sum appropriated under section five of Commonwealth Act Numbered Four hundred and
ninety-eight.
"SEC. 6. If any provision of this Act shall be declared by any court of competent jurisdiction to be
unconstitutional and void, such declaration shall not invalidate the remainder of this Act.
"SEC. 7. This Act shall take effect upon its approval.
"Approved, August 19, 1940."
"COMMONWEALTH ACT No. 671
"AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE
PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND
REGULATIONS TO MEET SUCH EMERGENCY.
"Be it enacted by the National Assembly of the Philippines
"SECTION 1. The existence of war between the United States and other countries of Europe and Asia, which
involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to
meet the resulting emergency.
"SEC. 2. Pursuant to the provisions of Article VI, section 16, of the Constitution, the President is hereby
authorized, during the existence of the emergency, to promulgate such rules and regulations as he may deem
necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, among other
things, empowered (a) to transfer the seat of the Government or any of its subdivisions, branches,
departments, offices, agencies or instrumentalities; (b) to reorganize the Government of the Commonwealth
including the determination of the order of precedence of the heads of the Executive Departments; (c) to
create new subdivisions, branches, departments, offices, agencies or instrumentalities of government and to
abolish any of those already existing; (d) to continue in force laws and appropriations which would lapse or
otherwise become inoperative, and to modify or suspend the operation or application of those of an
administrative character; (e) to impose new taxes or to increase, reduce, suspend, or abolish those in
existence; (f) to raise funds through the issuance of bonds or otherwise, and to authorize the expenditure of
the proceeds thereof; (g) to authorize the National, provincial, city or municipal governments to incur in
overdrafts for purposes that he may approve; (h) to declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other powers as he may deem necessary to enable the Government
to fulfill its responsibilities and to maintain and enforce its authority.
"SEC. 3. The President of the Philippines shall as soon as practicable upon the convening of the Congress of
the Philippines report thereto all the rules and regulations promulgated by him under the powers herein
granted.
"SEC. 4. This Act shall take effect upon its approval, and the rules and regulations promulgated hereunder
shall be in force and effect until the Congress of the Philippines shall otherwise provide.
"Approved, December 16, 1941."
The above Acts cannot validly be invoked, because they ceased to have any effect much before Executive
Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines from
the Japanese forces or, at the latest, when the surrender of Japan was signed in Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in
their consideration and passage, not only as one of the members of said legislative body but as chairman of
the Committee on Third Reading, popularly known as the "Little Senate." We are, therefore, in a position to
state that said measures were enacted by the Second National Assembly for the purpose of facing the
emergency of an impending war and of the Pacific War that finally broke out with the attack of Pearl Harbor
on December 7, 1941. We approved said extraordinary measures, by which, under the exceptional
circumstances then prevailing, legislative powers were delegated to the President of the Philippines, by virtue
of the following provisions of the Constitution
"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 promulgate rules and regulations to carry out a
declared national policy." (Article VI, section 26.)
It has never been the purpose of the National Assembly to extend the delegation beyond the emergence
created by the war, as to extend it farther would be violative of the express provisions of the Constitution. We
are of the opinion that there is no doubt on this question; but if there could still be any, the same should be
resolved in favor of the presumption that the National Assembly did not intend to violate the fundamental
law.
The absurdity of the contention that the emergency Acts continued in effect even after the surrender of Japan
can not be gainsaid. Only a few months after liberation and even before the surrender of Japan, or since the
middle of 1945, the Congress started to function normally. In the hypothesis that the contention can prevail,
then, since 1945, that is, four years ago, even after the Commonwealth was already replaced by the Republic
of the Philippines with the proclamation of our Independence, two distinct, separate and independent
legislative organs, Congress and the President of the Philippines would have been and would continue
enacting laws, the former to enact laws of every nature including those of emergent character, and the latter
to enact laws, in the form of executive orders, under the so-called emergency powers. The situation would be
pregnant with dangers to peace and order, to the rights and liberties of the people, and to Philippine
democracy.
Should there be any disagreement between Congress and the President of the Philippines, a possibility that
no one can dispute, the President of the Philippines may take advantage of the long recess of Congress (two-
thirds of every year) to repeal and overrule legislative enactments of Congress, and may set up a veritable
system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution.
Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental police power and equal protection of the laws. It also poses an important issue of fact, that is whether the
guarantees of the due process and equal protection of the law. It is especially so, because it permits the conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a
admission of many kinds of evidence by which no innocent person can afford to get acquittal, and by which deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the
it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt. alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulations governing the aspirations for economic independence and national security, rooted in the drive and urge for national
trial of twelve criminals, issued by General Douglas MacArthur, Commander in Chief of the United States survival and welfare, into a concrete and tangible measures designed to free the national retailer from the
Armed Forces in Western Pacific, for the purpose of trying, among others, Generals Yamashita and Homma. competing dominance of the alien, so that the country and the nation may be free from a supposed economic
What we said in our concurring and dissenting opinion to the decision promulgated on December 19, 1945, dependence and bondage. Do the facts and circumstances justify the enactment?
in the Yamashita case, L-129, 1 and in our concurring and dissenting opinion to the resolution of January 23, II. Pertinent provisions of Republic Act No. 1180
1946, in disposing the Homma case, L-244, 2 are perfectly applicable to the offensive rules of evidence Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail
embodied in Executive Order No. 68. Said rules of evidence are repugnant to conscience as under them no trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the
justice can be expected. Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned
For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from
Executive Order No. 68 null and void and to grant the petition. the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed
to continue to engaged therein, unless their licenses are forfeited in accordance with the law, until their death
or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the
expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical
entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for
violation of the laws on nationalization, control weights and measures and labor and other laws relating to
trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens actually
engaged in the retail business of additional stores or branches of retail business, (6) a provision requiring
aliens actually engaged in the retail business to present for registration with the proper authorities a verified
statement concerning their businesses, giving, among other matters, the nature of the business, their assets
and liabilities and their offices and principal offices of judicial entities; and (7) a provision allowing the heirs
of aliens now engaged in the retail business who die, to continue such business for a period of six months for
purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships
adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial
declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacks
the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the
laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is not
expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of the
Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of their retail
business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or
entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and
Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in
the valid exercise of the police power of the State, which exercise is authorized in the Constitution in the
EN BANC interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no treaty or
G.R. No. L-7995 May 31, 1957 international obligations are infringed; (4) as regards hereditary succession, only the form is affected but the
LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and value of the property is not impaired, and the institution of inheritance is only of statutory origin.
partnerships adversely affected. by Republic Act No. 1180, petitioner, IV. Preliminary consideration of legal principles involved
vs. a. The police power.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of There is no question that the Act was approved in the exercise of the police power, but petitioner claims that
Manila, respondents. its exercise in this instance is attended by a violation of the constitutional requirements of due process and
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner. equal protection of the laws. But before proceeding to the consideration and resolution of the ultimate issue
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations
of Finance. in the determination of the ever recurrent conflict between police power and the guarantees of due process
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer. and equal protection of the laws. What is the scope of police power, and how are the due process and equal
Dionisio Reyes as Amicus Curiae. protection clauses related to it? What is the province and power of the legislature, and what is the function
Marcial G. Mendiola as Amicus Curiae. and duty of the courts? These consideration must be clearly and correctly understood that their application to
Emiliano R. Navarro as Amicus Curiae. the facts of the case may be brought forth with clarity and the issue accordingly resolved.
LABRADOR, J.: It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit
I. The case and issue, in general its sweep. As it derives its existence from the very existence of the State itself, it does not need to be
This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such it
enactment, fundamental and far-reaching in significance. The enactment poses questions of due process, is the most positive and active of all governmental processes, the most essential, insistent and illimitable.
Especially is it so under a modern democratic framework where the demands of society and of nations have
multiplied to almost unimaginable proportions; the field and scope of police power has become almost
boundless, just as the fields of public interest and public welfare have become almost all-embracing and have
transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public
interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the
extent or scope of police power by which and through which the State seeks to attain or achieve interest or
welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what
they do is to set forth the limitations thereof. The most important of these are the due process clause and the
equal protection clause.
b. Limitations on police power.
The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any
person be denied the equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in democracies,
are not limited to citizens alone but are admittedly universal in their application, without regard to any
differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause.
The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is
limited either in the object to which it is directed or by territory within which is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable grounds exists for making a
distinction between those who fall within such class and those who do not. (2 Cooley, Constitutional
Limitations, 824-825.)
d. The due process clause.
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police
power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary
for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is there
sufficient foundation or reason in connection with the matter involved; or has there not been a capricious use
of the legislative power? Can the aims conceived be achieved by the means used, or is it not merely an
unjustified interference with private interest? These are the questions that we ask when the due process test is
applied.
The conflict, therefore, between police power and the guarantees of due process and equal protection of the
laws is more apparent than real. Properly related, the power and the guarantees are supposed to coexist. The
balancing is the essence or, shall it be said, the indispensable means for the attainment of legitimate
aspirations of any democratic society. There can be no absolute power, whoever exercise it, for that would be
tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State can
deprive persons of life, liberty and property, provided there is due process of law; and persons may be
classified into classes and groups, provided everyone is given the equal protection of the law. The test or
standard, as always, is reason. The police power legislation must be firmly grounded on public interest and
welfare, and a reasonable relation must exist between purposes and means. And if distinction and
classification has been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review.
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be
overlooked, in the first place, that the legislature, which is the constitutional repository of police power and
exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the
judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the
police power, or of the measures adopted to implement the public policy or to achieve public interest. On the
other hand, courts, although zealous guardians of individual liberty and right, have nevertheless evinced a
reluctance to interfere with the exercise of the legislative prerogative. They have done so early where there
has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover,
courts are not supposed to override legitimate policy, and courts never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the
disputed legislation were merely a regulation, as its title indicates, there would be no question that it falls
within the legitimate scope of legislative power. But it goes further and prohibits a group of residents, the
aliens, from engaging therein. The problem becomes more complex because its subject is a common, trade or
occupation, as old as society itself, which from the immemorial has always been open to residents,
irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation.
In a primitive economy where families produce all that they consume and consume all that they produce, the
dealer, of course, is unknown. But as group life develops and families begin to live in communities
producing more than what they consume and needing an infinite number of things they do not produce, the
dealer comes into existence. As villages develop into big communities and specialization in production
begins, the dealer's importance is enhanced. Under modern conditions and standards of living, in which
man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes as
essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life are
placed within the easy reach of consumers. Retail dealers perform the functions of capillaries in the human
body, thru which all the needed food and supplies are ministered to members of the communities comprising
the nation.
There cannot be any question about the importance of the retailer in the life of the community. He ministers
to the resident's daily needs, food in all its increasing forms, and the various little gadgets and things needed
for home and daily life. He provides his customers around his store with the rice or corn, the fish, the salt, the
vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle and the thread to sew
them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the owner of a
small sari-sari store, to the operator of a department store or, a supermarket is so much a part of day-to-day
existence.
b. The alien retailer's trait.
The alien retailer must have started plying his trades in this country in the bigger centers of population (Time
there was when he was unknown in provincial towns and villages). Slowly but gradually be invaded towns
and villages; now he predominates in the cities and big centers of population. He even pioneers, in far away
nooks where the beginnings of community life appear, ministering to the daily needs of the residents and
purchasing their agricultural produce for sale in the towns. It is an undeniable fact that in many communities
the alien has replaced the native retailer. He has shown in this trade, industry without limit, and the patience
and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and insolent
neighbors and customers are made in his face, but he heeds them not, and he forgets and forgives. The
community takes note of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance.
There is a general feeling on the part of the public, which appears to be true to fact, about the controlling and
dominant position that the alien retailer holds in the nation's economy. Food and other essentials, clothing,
almost all articles of daily life reach the residents mostly through him. In big cities and centers of population
he has acquired not only predominance, but apparent control over distribution of almost all kinds of goods,
such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods and
articles. And were it not for some national corporations like the Naric, the Namarco, the Facomas and the
Acefa, his control over principal foods and products would easily become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that
the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the result of
radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of control; also so
many unmanageable factors in the retail business make control virtually impossible. The first argument
which brings up an issue of fact merits serious consideration. The others are matters of opinion within the
exclusive competence of the legislature and beyond our prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and white.
Between the constitutional convention year (1935), when the fear of alien domination and control of the
retail trade already filled the minds of our leaders with fears and misgivings, and the year of the enactment of
the nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-
increasing dominance and control by the alien of the retail trade, as witness the following tables:
Assets Gross Sales
No.-
Year and Retailers Per cent Per
Establishment Pesos Pesos
Nationality Distribution Dis
s
1941:
 Filipino .......... 106,671 200,323,138 55.82 174,181,924 Chinese ............................................. 7,707 24,398
Chinese ........... 15,356 118,348,692 32.98 148,813,239
Others .............................................. 24,916 23,686
Others ............ 1,646 40,187,090 11.20 13,630,239
1947: 1949:
Filipino .......... 111,107 208,658,946 65.05 279,583,333
Filipino ............................................. 1,878 4,069
Chinese ........... 13,774 106,156,218 33.56 205,701,134
Others ........... 354 8,761,260 .49 4,927,168 Chinese .............................................. 7,707 24,152
1948: (Census)
Others .............................................. 24,807 20,737
Filipino .......... 113,631 213,342,264 67.30 467,161,667
Chinese .......... 12,087 93,155,459 29.38 294,894,227 1951:
Others .......... 422 10,514,675 3.32 9,995,402 Filipino ............................................. 1,877 3,905
1949:
Filipino .......... 113,659 213,451,602 60.89 462,532,901 Chinese ............................................. 7,707 33,207

Chinese .......... 16,248 125,223,336 35.72 392,414,875 Others ............................................... 24,824 22,033
Others .......... 486 12,056,365 3.39 10,078,364 (Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark:
1951: 1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-
19 of Answer.)
Filipino ......... 119,352 224,053,620 61.09 466,058,052 The above statistics do not include corporations and partnerships, while the figures on Filipino
Chinese .......... 17,429 134,325,303 36.60 404,481,384 establishments already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation has
Others .......... 347 8,614,025 2.31 7,645,327 steadily increased during the years. It is true, of course, that Filipinos have the edge in the number of
retailers, but aliens more than make up for the numerical gap through their assests and gross sales which
average between six and seven times those of the very many Filipino retailers. Numbers in retailers, here, do
AVERAGE
not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains much
ASSETS AND GROSS SALES PER ESTABLISHMENT
more. The same official report, pointing out to the known predominance of foreign elements in the retail
trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by
Item
Year and Retailer's Gross Sales respondents, the native investment is thinly spread, and the Filipino retailer is practically helpless in matters
Assets of capital, credit, price and supply.
Nationality (Pesos)
(Pesos) d. Alien control and threat, subject of apprehension in Constitutional convention.
It is this domination and control, which we believe has been sufficiently shown to exist, that is the
1941: legislature's target in the enactment of the disputed nationalization would never have been adopted. The
framers of our Constitution also believed in the existence of this alien dominance and control when they
Filipino ............................................. 1,878 1,633 approved a resolution categorically declaring among other things, that "it is the sense of the Convention that
the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of the
Chinese .............................................. 7,707 9,691 Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the
events since then have not been either pleasant or comforting. Dean Sinco of the University of the
Others ............................................... 24,415 8,281 Philippines College of Law, commenting on the patrimony clause of the Preamble opines that the fathers of
our Constitution were merely translating the general preoccupation of Filipinos "of the dangers from alien
1947: interests that had already brought under their control the commercial and other economic activities of the
country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the
constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions
Filipino ............................................. 1,878 2,516
of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the country is not
Chinese ........................................... 7,707 14,934 desirable and that if such a situation should remain, political independence alone is no guarantee to national
stability and strength. Filipino private capital is not big enough to wrest from alien hands the control of the
Others .............................................. 24,749 13,919 national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and
hesitant. Under such conditions, the government as the instrumentality of the national will, has to step in and
1948: (Census) assume the initiative, if not the leadership, in the struggle for the economic freedom of the nation in
somewhat the same way that it did in the crusade for political freedom. Thus . . . it (the Constitution)
Filipino ............................................. 1,878 4,111 envisages an organized movement for the protection of the nation not only against the possibilities of armed
invasion but also against its economic subjugation by alien interests in the economic field. (Phil. Political
Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they express
sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July 18, 1953, of the
Fifth National convention of Filipino Businessmen, and a similar resolution, approved on March 20, 1954, of
the Second National Convention of Manufacturers and Producers. The man in the street also believes, and
fears, alien predominance and control; so our newspapers, which have editorially pointed out not only to
control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality
proved by official statistics, and felt by all the sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance
alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With
ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act in
such complete unison and concert on such vital matters as the fixing of prices, the determination of the
amount of goods or articles to be made available in the market, and even the choice of the goods or articles
they would or would not patronize or distribute, that fears of dislocation of the national economy and of the
complete subservience of national economy and of the consuming public are not entirely unfounded.
Nationals, producers and consumers alike can be placed completely at their mercy. This is easily illustrated.
Suppose an article of daily use is desired to be prescribed by the aliens, because the producer or importer
does not offer them sufficient profits, or because a new competing article offers bigger profits for its
introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from their
stocks, offering the new one as a substitute. Hence, the producers or importers of the prescribed article, or its
consumers, find the article suddenly out of the prescribed article, or its consumers, find the article suddenly
out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien domination.
Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice,
which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there
exists a general feeling on the part of the public that alien participation in the retail trade has been attended
by a pernicious and intolerable practices, the mention of a few of which would suffice for our purposes; that
at some time or other they have cornered the market of essential commodities, like corn and rice, creating
artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded
essential foods to the inconvenience and prejudice of the consuming public, so much so that the Government
has had to establish the National Rice and Corn Corporation to save the public from their continuous
hoarding practices and tendencies; that they have violated price control laws, especially on foods and
essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168),
authorizing their immediate and automatic deportation for price control convictions; that they have secret
combinations among themselves to control prices, cheating the operation of the law of supply and demand;
that they have connived to boycott honest merchants and traders who would not cater or yield to their
demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to have
evaded tax laws, smuggled goods and money into and out of the land, violated import and export
prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that
they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of
graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made
both by the Government and by their own lawful diplomatic representatives, action which impliedly admits a
prevailing feeling about the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things may come in the future. The
present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a
potential source of danger on occasions of war or other calamity. We do not have here in this country isolated
groups of harmless aliens retailing goods among nationals; what we have are well organized and powerful
groups that dominate the distribution of goods and commodities in the communities and big centers of
population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of
crisis or emergency. While the national holds his life, his person and his property subject to the needs of his
country, the alien may even become the potential enemy of the State.
f. Law enacted in interest of national economic survival and security.
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the
product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and
determination of the people, thru their authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is
clearly in the interest of the public, nay of the national security itself, and indisputably falls within the scope
of police power, thru which and by which the State insures its existence and security and the supreme welfare
of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. The next question that now poses solution is, Does the
law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root and
cause of the distinction between the alien and the national as a trader. The alien resident owes allegiance to
the country of his birth or his adopted country; his stay here is for personal convenience; he is attracted by
the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is
naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays and
makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as would
prevent him from taking advantage of their weakness and exploiting them. The faster he makes his pile, the
earlier can the alien go back to his beloved country and his beloved kin and countrymen. The experience of
the country is that the alien retailer has shown such utter disregard for his customers and the people on whom
he makes his profit, that it has been found necessary to adopt the legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine contribution to
national income and wealth. He undoubtedly contributes to general distribution, but the gains and profits he
makes are not invested in industries that would help the country's economy and increase national wealth. The
alien's interest in this country being merely transient and temporary, it would indeed be ill-advised to
continue entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret
manipulations of stocks of commodities and prices, their utter disregard of the welfare of their customers and
of the ultimate happiness of the people of the nation of which they are mere guests, which practices,
manipulations and disregard do not attend the exercise of the trade by the nationals, show the existence of
real and actual, positive and fundamental differences between an alien and a national which fully justify the
legislative classification adopted in the retail trade measure. These differences are certainly a valid reason for
the State to prefer the national over the alien in the retail trade. We would be doing violence to fact and
reality were we to hold that no reason or ground for a legitimate distinction can be found between one and
the other.
b. Difference in alien aims and purposes sufficient basis for distinction.
The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and
real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens. Some
may disagree with the wisdom of the legislature's classification. To this we answer, that this is the prerogative
of the law-making power. Since the Court finds that the classification is actual, real and reasonable, and all
persons of one class are treated alike, and as it cannot be said that the classification is patently unreasonable
and unfounded, it is in duty bound to declare that the legislature acted within its legitimate prerogative and it
can not declare that the act transcends the limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not
curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope
of discretion, and a law can be violative of the constitutional limitation only when the classification is
without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case
of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the
application of equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to
classify in the adoption of police laws, but admits of the exercise of the wide scope of discretion in that
regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely
arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because
it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably can be conceived that would
sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who
assails the classification in such a law must carry the burden of showing that it does not rest upon any
reasonable basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification.
The question as to whether or not citizenship is a legal and valid ground for classification has already been
affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case of Smith
Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine Legislature was
in issue, because of a condition therein limiting the ownership of vessels engaged in coastwise trade to
corporations formed by citizens of the Philippine Islands or the United States, thus denying the right to
aliens, it was held that the Philippine Legislature did not violate the equal protection clause of the Philippine
Bill of Rights. The legislature in enacting the law had as ultimate purpose the encouragement of Philippine
shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a valid exercise
of the police power, and all presumptions are in favor of its constitutionality. In substance, we held that the
limitation of domestic ownership of vessels engaged in coastwise trade to citizens of the Philippines does not
violate the equal protection of the law and due process or law clauses of the Philippine Bill of Rights. In
rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the case
of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming
houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms
part of an extensive system, the object of which is to encourage American shipping, and place them on an
equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects
a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is
contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to the act of her
enrollment. But it is to confer on her American privileges, as contra distinguished from foreign; and to
preserve the Government from fraud by foreigners; in surreptitiously intruding themselves into the American
commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is
projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise justified simply
because the limitation of the class falls along the lines of nationality. That would be requiring a higher degree
of protection for aliens as a class than for similar classes than for similar classes of American citizens.
Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and
peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to
become a citizen of the United States, was held valid, for the following reason: It may seem wise to the
legislature to limit the business of those who are supposed to have regard for the welfare, good order and
happiness of the community, and the court cannot question this judgment and conclusion. In Bloomfield vs.
State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens, from
engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a
deliberate purpose to discriminate, but was based on the belief that an alien cannot be sufficiently acquainted
with "our institutions and our life as to enable him to appreciate the relation of this particular business to our
entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71
L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati
prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may not bear
in some instances such a relation to a legitimate object of legislation as to be made the basis of permitted
classification, and that it could not state that the legislation is clearly wrong; and that latitude must be
allowed for the legislative appraisement of local conditions and for the legislative choice of methods for
controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to
the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking
was considered as having tendencies injuring public interest, and limiting it to citizens is within the scope of
police power. A similar statute denying aliens the right to engage in auctioneering was also sustained
in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340
(Oregon, 1924), the court said that aliens are judicially known to have different interests, knowledge,
attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to them for the business of
pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar
vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of
aliens as barbers was held void, but the reason for the decision was the court's findings that the exercise of
the business by the aliens does not in any way affect the morals, the health, or even the convenience of the
community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute
banning the issuance of commercial fishing licenses to person ineligible to citizenship was held void,
because the law conflicts with Federal power over immigration, and because there is no public interest in the
mere claim of ownership of the waters and the fish in them, so there was no adequate justification for the
discrimination. It further added that the law was the outgrowth of antagonism toward the persons of Japanese
ancestry. However, two Justices dissented on the theory that fishing rights have been treated traditionally as
natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law
which imposed a tax on every employer of foreign-born unnaturalized male persons over 21 years of age,
was declared void because the court found that there was no reason for the classification and the tax was an
arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained.
It is true that some decisions of the Federal court and of the State courts in the United States hold that the
distinction between aliens and citizens is not a valid ground for classification. But in this decision the laws
declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or product of
racial antagonism and hostility, and there was no question of public interest involved or pursued. In Yu Cong
Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a Philippine law
making unlawful the keeping of books of account in any language other than English, Spanish or any other
local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business there
would be no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud,
because they would be deprived of their right to be advised of their business and to direct its conduct. The
real reason for the decision, therefore, is the court's belief that no public benefit would be derived from the
operations of the law and on the other hand it would deprive Chinese of something indispensable for carrying
on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on officials to
withhold consent in the operation of laundries both as to persons and place, was declared invalid, but the
court said that the power granted was arbitrary, that there was no reason for the discrimination which
attended the administration and implementation of the law, and that the motive thereof was mere racial
hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers
and peddlers was declared void, because the discrimination bore no reasonable and just relation to the act in
respect to which the classification was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do not
naturally possess the sympathetic consideration and regard for the customers with whom they come in daily
contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it enhances their
profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the
qualifications of the aliens have been shown on many occasions and instances, especially in times of crisis
and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to
drive home the reality and significance of the distinction between the alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without the intimate
knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain
classes of aliens are of different psychology from our fellow countrymen. Furthermore, it is natural and
reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose ideals
of governmental environment and control have been engendered and formed under entirely different regimes
and political systems, have not the same inspiration for the public weal, nor are they as well disposed toward
the United States, as those who by citizenship, are a part of the government itself. Further enlargement, is
unnecessary. I have said enough so that obviously it cannot be affirmed with absolute confidence that the
Legislature was without plausible reason for making the classification, and therefore appropriate
discriminations against aliens as it relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
We now come to due process as a limitation on the exercise of the police power. It has been stated by the
highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law shall not be
unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to
the subject sought to be attained. . . . .
xxx xxx xxx
So far as the requirement of due process is concerned and in the absence of other constitutional restriction a
state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to
enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare
such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a
reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police
power in a constitutional sense, for the test used to determine the constitutionality of the means employed by
the legislature is to inquire whether the restriction it imposes on rights secured to individuals by the Bill of
Rights are unreasonable, and not whether it imposes any restrictions on such rights. . . .
xxx xxx xxx
. . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it
affects, must not be for the annoyance of a particular class, and must not be unduly oppressive. (11 Am. Jur.
Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the
interests of the public generally, as distinguished from those of a particular class, require such interference;
and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate
the operation of a business, is or is not constitutional, one of the first questions to be considered by the court
is whether the power as exercised has a sufficient foundation in reason in connection with the matter
involved, or is an arbitrary, oppressive, and capricious use of that power, without substantial relation to the
health, safety, morals, comfort, and general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago
recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and honest
occupation and therefore beyond the power of the legislature to prohibit and penalized. This arguments
overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this country where
the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in an honest creditable
and unimpeachable manner, without harm or injury to the citizens and without ultimate danger to their
economic peace, tranquility and welfare. But the Legislature has found, as we have also found and indicated,
that the privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs and
practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on
the nation's economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts
and circumstances, but this, Is the exclusion in the future of aliens from the retail trade unreasonable.
Arbitrary capricious, taking into account the illegitimate and pernicious form and manner in which the aliens
have heretofore engaged therein? As thus correctly stated the answer is clear. The law in question is deemed
absolutely necessary to bring about the desired legislative objective, i.e., to free national economy from alien
control and dominance. It is not necessarily unreasonable because it affects private rights and privileges (11
Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed
legislation, which is not merely reasonable but actually necessary, must be considered not to have infringed
the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill, which
later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the
Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of
our economic life are the ones who owe no allegiance to this Republic, who have no profound devotion to
our free institutions, and who have no permanent stake in our people's welfare, we are not really the masters
of our destiny. All aspects of our life, even our national security, will be at the mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of
the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons who
are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life and
endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none the less
legitimate. Freedom and liberty are not real and positive if the people are subject to the economic control and
domination of others, especially if not of their own race or country. The removal and eradication of the
shackles of foreign economic control and domination, is one of the noblest motives that a national legislature
may pursue. It is impossible to conceive that legislation that seeks to bring it about can infringe the
constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never be
beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.
The framers of the Constitution could not have intended to impose the constitutional restrictions of due
process on the attainment of such a noble motive as freedom from economic control and domination, thru the
exercise of the police power. The fathers of the Constitution must have given to the legislature full authority
and power to enact legislation that would promote the supreme happiness of the people, their freedom and
liberty. On the precise issue now before us, they expressly made their voice clear; they adopted a resolution
expressing their belief that the legislation in question is within the scope of the legislative power. Thus they
declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it
abstain from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others on
this matter because it is convinced that the National Assembly is authorized to promulgate a law which limits
to Filipino and American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of the
Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution.
Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as corollary
the provision limiting to citizens of the Philippines the exploitation, development and utilization of its natural
resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or any other form of
authorization for the operation of the public utility shall be granted except to citizens of the Philippines." The
nationalization of the retail trade is only a continuance of the nationalistic protective policy laid down as a
primary objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of
the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the country
and its people would it view the sorry plight of the nationals with the complacency and refuse or neglect to
adopt a remedy commensurate with the demands of public interest and national survival. As the repository of
the sovereign power of legislation, the Legislature was in duty bound to face the problem and meet, through
adequate measures, the danger and threat that alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable.
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those already
engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the
right to continue is accorded associations of aliens. The right or privilege is denied to those only upon
conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the fact
that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade.
Such provision would defeat the law itself, its aims and purposes. Beside, the exercise of legislative
discretion is not subject to judicial review. It is well settled that the Court will not inquire into the motives of
the Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the judge
of the necessity of an enactment or of any of its provisions, and every presumption is in favor of its validity,
and though the Court may hold views inconsistent with the wisdom of the law, it may not annul the
legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of a law
attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and we find the
provisions are not unreasonable. These principles also answer various other arguments raised against the law,
some of which are: that the law does not promote general welfare; that thousands of aliens would be thrown
out of employment; that prices will increase because of the elimination of competition; that there is no need
for the legislation; that adequate replacement is problematical; that there may be general breakdown; that
there would be repercussions from foreigners; etc. Many of these arguments are directed against the
supposed wisdom of the law which lies solely within the legislative prerogative; they do not import
invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail business
and prohibit aliens from engaging therein. The constitutional provision which is claimed to be violated in
Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in the
title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators
or the public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory
Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the bill fails to
show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first
glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes
and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both of
these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale of
intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be
stated in the tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject of
an act prohibiting the sale of such liquors to minors and to persons in the habit of getting intoxicated; such
matters being properly included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306,
308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of
acts usually done in connection with the thing to be regulated. While word regulate does not ordinarily
convey meaning of prohibit, there is no absolute reason why it should not have such meaning when used in
delegating police power in connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title need not
be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.) The
above rule was followed the title of the Act in question adopted the more general term "regulate" instead of
"nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of the retail trade
which may not be included in the terms "nationalization" or "prohibition"; so were the title changed from
"regulate" to "nationalize" or "prohibit", there would have been many provisions not falling within the scope
of the title which would have made the Act invalid. The use of the term "regulate", therefore, is in accord
with the principle governing the drafting of statutes, under which a simple or general term should be adopted
in the title, which would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into
law of matters which have received the notice, action and study of the legislators or of the public. In the case
at bar it cannot be claimed that the legislators have been appraised of the nature of the law, especially the
nationalization and the prohibition provisions. The legislators took active interest in the discussion of the law,
and a great many of the persons affected by the prohibitions in the law conducted a campaign against its
approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The
objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter
of the United Nations and of the Declaration of the Human Rights adopted by the United Nations General
Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations regarding the rights
and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the
Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of
achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter
aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations
Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most
nations of the world laws against foreigners engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is
also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the
Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of China are
not discriminating against because nationals of all other countries, except those of the United States, who are
granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even
supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or
amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail
or restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual
threat and danger to national economy posed by alien dominance and control of the retail business and free
citizens and country from dominance and control; that the enactment clearly falls within the scope of the
police power of the State, thru which and by which it protects its own personality and insures its security and
future; that the law does not violate the equal protection clause of the Constitution because sufficient grounds
exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the due
process of law clause, because the law is prospective in operation and recognizes the privilege of aliens
already engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the
law to carry out its objectives appear to us to be plainly evident as a matter of fact it seems not only
appropriate but actually necessary and that in any case such matter falls within the prerogative of the
Legislature, with whose power and discretion the Judicial department of the Government may not interfere;
that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not
misled the legislators or the segment of the population affected; and that it cannot be said to be void for
supposed conflict with treaty obligations because no treaty has actually been entered into on the subject and
the police power may not be curtailed or surrendered by any treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been made less
harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the law for the
liquidation of existing businesses when the time comes for them to close. Our legal duty, however, is merely
to determine if the law falls within the scope of legislative authority and does not transcend the limitations of
due process and equal protection guaranteed in the Constitution. Remedies against the harshness of the law
should be addressed to the Legislature; they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.
Separate Opinions
PADILLA, J., concurring and dissenting:
I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act passed
by the Congress and duly approved by the President of the Republic. But the rule does not preclude courts
from inquiring and determining whether the Act offends against a provision or provisions of the Constitution.
I am satisfied that the Act assailed as violative of the due process of law and the equal protection of the laws
clauses of the Constitution does not infringe upon them, insofar as it affects associations, partnership or
corporations, the capital of which is not wholly owned by the citizens of the Philippines, and aliens, who are
not and have not been engaged in the retail business. I am, however, unable to persuade myself that it does
not violate said clauses insofar as the Act applies to associations and partnerships referred to in the Act and to
aliens, who are and have heretofore been engaged in said business. When they did engage in the retail
business there was no prohibition on or against them to engage in it. They assumed and believed in good
faith they were entitled to engaged in the business. The Act allows aliens to continue in business until their
death or voluntary retirement from the business or forfeiture of their license; and corporations, associations
or partnership, the capital of which is not wholly owned by the citizens of the Philippines to continue in the
business for a period of ten years from the date of the approval of the Act (19 June 1954) or until the expiry
of term of the existence of the association or partnership or corporation, whichever event comes first. The
prohibition on corporations, the capital of which is not wholly owned by citizens of the Philippines, to
engage in the retail business for a period of more than ten years from the date of the approval of the Act or
beyond the term of their corporate existence, whichever event comes first, is valid and lawful, because the
continuance of the existence of such corporations is subject to whatever the Congress may impose reasonably
upon them by subsequent legislation.1 But the prohibition to engage in the retail business by associations and
partnerships, the capital of which is not wholly owned by citizen of the Philippines, after ten years from the
date of the approval of the Act, even before the end of the term of their existence as agreed upon by the
associates and partners, and by alien heirs to whom the retail business is transmitted by the death of an alien
engaged in the business, or by his executor or administrator, amounts to a deprivation of their property
without due process of law. To my mind, the ten-year period from the date of the approval of the Act or until
the expiration of the term of the existence of the association and partnership, whichever event comes first,
and the six-month period granted to alien heirs of a deceased alien, his executor or administrator, to liquidate
the business, do not cure the defect of the law, because the effect of the prohibition is to compel them to sell
or dispose of their business. The price obtainable at such forced sale of the business would be inadequate to
reimburse and compensate the associates or partners of the associations or partnership, and the alien heirs of
a deceased alien, engaged in the retail business for the capital invested in it. The stock of merchandise bought
and sold at retail does not alone constitute the business. The goodwill that the association, partnership and the
alien had built up during a long period of effort, patience and perseverance forms part of such business. The
constitutional provisions that no person shall be deprived of his property without due process of law 2 and that
no person shall be denied the equal protection of the laws 3 would have no meaning as applied to associations
or partnership and alien heirs of an alien engaged in the retail business if they were to be compelled to sell or
dispose of their business within ten years from the date of the approval of the Act and before the end of the
term of the existence of the associations and partnership as agreed upon by the associations and partners and
within six months after the death of their predecessor-in-interest.
The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of
private agricultural lands which together with the lands of the public domain constitute the priceless
patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive aliens and their
heirs of such lands.4
For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and
partnership referred to therein to wind up their retail business within ten years from the date of the approval
of the Act even before the expiry of the term of their existence as agreed upon by the associates and partners
and section 3 of the Act, insofar as it compels the aliens engaged in the retail business in his lifetime his
executor or administrator, to liquidate the business, are invalid, for they violate the due process of law and
the equal protection of the laws clauses of the Constitution.
. The petitioners in this case are prominent victims of human rights violations [1] who, deprived of the
SECOND DIVISION
[G.R. No. 139325. April 12, 2005]
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR. MARIANI
DIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on behalf of the Class Plaintiffs
in Class Action No. MDL 840, United States District Court of Hawaii, petitioners, vs. HON.
SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of Branch 137, Regional Trial
Court, Makati City, and the ESTATE OF FERDINAND E. MARCOS, through its court appointed
legal representatives in Class Action MDL 840, United States District Court of Hawaii, namely: Imelda
R. Marcos and Ferdinand Marcos, Jr., respondents.
DECISION
TINGA, J.:
Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its bitter
crop. While the restoration of freedom and the fundamental structures and processes of democracy have been
much lauded, according to a significant number, the changes, however, have not sufficiently healed the
colossal damage wrought under the oppressive conditions of the martial law period. The cries of justice for
the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fair-
minded, yet the dispensation of the appropriate relief due them cannot be extended through the same caprice
or whim that characterized the ill-wind of martial rule. The damage done was not merely personal but
institutional, and the proper rebuke to the iniquitous past has to involve the award of reparations due within
the confines of the restored rule of law.
opportunity to directly confront the man who once held absolute rule over this country, have chosen to do
battle instead with the earthly representative, his estate. The clash has been for now interrupted by a trial
court ruling, seemingly comported to legal logic, that required the petitioners to pay a whopping filing fee of
over Four Hundred Seventy-Two Million Pesos (P472,000,000.00) in order that they be able to enforce a
judgment awarded them by a foreign court. There is an understandable temptation to cast the struggle within
the simplistic confines of a morality tale, and to employ short-cuts to arrive at what might seem the desirable
solution. But easy, reflexive resort to the equity principle all too often leads to a result that may be morally
correct, but legally wrong.
Nonetheless, the application of the legal principles involved in this case will comfort those who maintain that
our substantive and procedural laws, for all their perceived ambiguity and susceptibility to myriad
interpretations, are inherently fair and just. The relief sought by the petitioners is expressly mandated by our
laws and conforms to established legal principles. The granting of this petition for certiorari is warranted in
order to correct the legally infirm and unabashedly unjust ruling of the respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a complaint was filed with the United States
District Court (US District Court), District of Hawaii, against the Estate of former Philippine President
Ferdinand E. Marcos (Marcos Estate). The action was brought forth by ten Filipino citizens [2] who each
alleged having suffered human rights abuses such as arbitrary detention, torture and rape in the hands of
police or military forces during the Marcos regime. [3] The Alien Tort Act was invoked as basis for the US
District Courts jurisdiction over the complaint, as it involved a suit by aliens for tortious violations of
international law.[4] These plaintiffs brought the action on their own behalf and on behalf of a class of
similarly situated individuals, particularly consisting of all current civilian citizens of the Philippines, their
heirs and beneficiaries, who between 1972 and 1987 were tortured, summarily executed or had disappeared
while in the custody of military or paramilitary groups. Plaintiffs alleged that the class consisted of
approximately ten thousand (10,000) members; hence, joinder of all these persons was impracticable.
The institution of a class action suit was warranted under Rule 23(a) and (b)(1)(B) of the US Federal Rules of
Civil Procedure, the provisions of which were invoked by the plaintiffs. Subsequently, the US District Court
certified the case as a class action and created three (3) sub-classes of torture, summary execution and
disappearance victims.[5] Trial ensued, and subsequently a jury rendered a verdict and an award of
compensatory and exemplary damages in favor of the plaintiff class. Then, on 3 February 1995, the US
District Court, presided by Judge Manuel L. Real, rendered a Final Judgment (Final Judgment) awarding the
plaintiff class a total of One Billion Nine Hundred Sixty Four Million Five Thousand Eight Hundred Fifty
Nine Dollars and Ninety Cents ($1,964,005,859.90). The Final Judgment was eventually affirmed by the US
Court of Appeals for the Ninth Circuit, in a decision rendered on 17 December 1996.[6]
On 20 May 1997, the present petitioners filed Complaint with the Regional Trial Court, City of Makati
(Makati RTC) for the enforcement of the Final Judgment. They alleged that they are members of the plaintiff
class in whose favor the US District Court awarded damages. [7] They argued that since the Marcos Estate
failed to file a petition for certiorari with the US Supreme Court after the Ninth Circuit Court of Appeals had
affirmed the Final Judgment, the decision of the US District Court had become final and executory, and
hence should be recognized and enforced in the Philippines, pursuant to Section 50, Rule 39 of the Rules of
Court then in force.[8]
On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising, among others, the non-payment of
the correct filing fees. It alleged that petitioners had only paid Four Hundred Ten Pesos (P410.00) as docket
and filing fees, notwithstanding the fact that they sought to enforce a monetary amount of damages in the
amount of over Two and a Quarter Billion US Dollars (US$2.25 Billion). The Marcos Estate cited Supreme
Court Circular No. 7, pertaining to the proper computation and payment of docket fees. In response, the
petitioners claimed that an action for the enforcement of a foreign judgment is not capable of pecuniary
estimation; hence, a filing fee of only Four Hundred Ten Pesos (P410.00) was proper, pursuant to Section
7(c) of Rule 141.[9]
On 9 September 1998, respondent Judge Santiago Javier Ranada [10] of the Makati RTC issued the
subject Order dismissing the complaint without prejudice. Respondent judge opined that contrary to the
petitioners submission, the subject matter of the complaint was indeed capable of pecuniary estimation, as it
involved a judgment rendered by a foreign court ordering the payment of definite sums of money, allowing
for easy determination of the value of the foreign judgment. On that score, Section 7(a) of Rule 141 of the
Rules of Civil Procedure would find application, and the RTC estimated the proper amount of filing fees was
approximately Four Hundred Seventy Two Million Pesos, which obviously had not been paid.
Not surprisingly, petitioners filed a Motion for Reconsideration, which Judge Ranada denied in
an Order dated 28 July 1999. From this denial, petitioners filed a Petition for Certiorariunder Rule 65
assailing the twin orders of respondent judge.[11] They prayed for the annulment of the questioned orders, and
an order directing the reinstatement of Civil Case No. 97-1052 and the conduct of appropriate proceedings
thereon.
Petitioners submit that their action is incapable of pecuniary estimation as the subject matter of the suit is the
enforcement of a foreign judgment, and not an action for the collection of a sum of money or recovery of
damages. They also point out that to require the class plaintiffs to pay Four Hundred Seventy Two Million
Pesos (P472,000,000.00) in filing fees would negate and render inutile the liberal construction ordained by
the Rules of Court, as required by Section 6, Rule 1 of the Rules of Civil Procedure, particularly the
inexpensive disposition of every action.
Petitioners invoke Section 11, Article III of the Bill of Rights of the Constitution, which provides that Free
access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person
by reason of poverty, a mandate which is essentially defeated by the required exorbitant filing fee. The
adjudicated amount of the filing fee, as arrived at by the RTC, was characterized as indisputably unfair,
inequitable, and unjust.
The Commission on Human Rights (CHR) was permitted to intervene in this case. [12] It urged that the petition
be granted and a judgment rendered, ordering the enforcement and execution of the District Court judgment
in accordance with Section 48, Rule 39 of the 1997 Rules of Civil Procedure. For the CHR, the Makati RTC
erred in interpreting the action for the execution of a foreign judgment as a new case, in violation of the
principle that once a case has been decided between the same parties in one country on the same issue with
finality, it can no longer be relitigated again in another country.[13] The CHR likewise invokes the principle of
comity, and of vested rights.
The Courts disposition on the issue of filing fees will prove a useful jurisprudential guidepost for courts
confronted with actions enforcing foreign judgments, particularly those lodged against an estate. There is no
basis for the issuance a limited pro hac vice ruling based on the special circumstances of the petitioners as
victims of martial law, or on the emotionally-charged allegation of human rights abuses.
An examination of Rule 141 of the Rules of Court readily evinces that the respondent judge ignored the clear
letter of the law when he concluded that the filing fee be computed based on the total sum claimed or the
stated value of the property in litigation.
In dismissing the complaint, the respondent judge relied on Section 7(a), Rule 141 as basis for the
computation of the filing fee of over P472 Million. The provision states:
SEC. 7. Clerk of Regional Trial Court.-
(a) For filing an action or a permissive counterclaim or money claim against an estate not based on
judgment, or for filing with leave of court a third-party, fourth-party, etc., complaint, or a complaint in
intervention, and for all clerical services in the same time, if the total sum claimed, exclusive of interest, or
the started value of the property in litigation, is:
1. Less than P 100,00.00 P 500.00
2. P 100,000.00 or more - P 800.00
but less than P 150,000.00
3. P 150,000.00 or more but - P 1,000.00
less than P 200,000.00
4. P 200,000.00 or more but
less than P 250,000.00 - P 1,500.00
5. P 250,000.00 or more but
less than P 300,00.00 - P 1,750.00
6. P 300,000.00 or more but
not more than P 400,000.00 - P 2,000.00
7. P 350,000.00 or more but not
more than P400,000.00 - P 2,250.00
8. For each P 1,000.00 in excess of
P 400,000.00 - P 10.00
...
(Emphasis supplied)
Obviously, the above-quoted provision covers, on one hand, ordinary actions, permissive counterclaims,
third-party, etc. complaints and complaints-in-interventions, and on the other, money claims against estates
which are not based on judgment. Thus, the relevant question for purposes of the present petition is whether
the action filed with the lower court is a money claim against an estate not based on judgment.
Petitioners complaint may have been lodged against an estate, but it is clearly based on a judgment, the Final
Judgment of the US District Court. The provision does not make any distinction between a local judgment
and a foreign judgment, and where the law does not distinguish, we shall not distinguish.
A reading of Section 7 in its entirety reveals several instances wherein the filing fee is computed on the basis
of the amount of the relief sought, or on the value of the property in litigation. The filing fee for requests for
extrajudicial foreclosure of mortgage is based on the amount of indebtedness or the mortgagees claim. [14] In
special proceedings involving properties such as for the allowance of wills, the filing fee is again based on
the value of the property.[15] The aforecited rules evidently have no application to petitioners complaint.
Petitioners rely on Section 7(b), particularly the proviso on actions where the value of the subject matter
cannot be estimated. The provision reads in full:
SEC. 7. Clerk of Regional Trial Court.-
(b) For filing
1. Actions where the value
of the subject matter
cannot be estimated --- P 600.00
2. Special civil actions except
judicial foreclosure which
shall be governed by
paragraph (a) above --- P 600.00
3. All other actions not
involving property --- P 600.00
In a real action, the assessed value of the property, or if there is none, the estimated value, thereof shall be
alleged by the claimant and shall be the basis in computing the fees.
It is worth noting that the provision also provides that in real actions, the assessed value or estimated value of
the property shall be alleged by the claimant and shall be the basis in computing the fees. Yet again, this
provision does not apply in the case at bar. A real action is one where the plaintiff seeks the recovery of real
property or an action affecting title to or recovery of possession of real property. [16] Neither the complaint nor
the award of damages adjudicated by the US District Court involves any real property of the Marcos Estate.
Thus, respondent judge was in clear and serious error when he concluded that the filing fees should be
computed on the basis of the schematic table of Section 7(a), as the action involved pertains to a claim
against an estate based on judgment. What provision, if any, then should apply in determining the filing fees
for an action to enforce a foreign judgment?
To resolve this question, a proper understanding is required on the nature and effects of a foreign judgment in
this jurisdiction.
The rules of comity, utility and convenience of nations have established a usage among civilized states by
which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered
efficacious under certain conditions that may vary in different countries. [17] This principle was prominently
affirmed in the leading American case of Hilton v. Guyot[18] and expressly recognized in our jurisprudence
beginning with Ingenholl v. Walter E. Olsen & Co.[19] The conditions required by the Philippines for
recognition and enforcement of a foreign judgment were originally contained in Section 311 of the Code of
Civil Procedure, which was taken from the California Code of Civil Procedure which, in turn, was derived
from the California Act of March 11, 1872. [20] Remarkably, the procedural rule now outlined in Section 48,
Rule 39 of the Rules of Civil Procedure has remained unchanged down to the last word in nearly a century.
Section 48 states:
SEC. 48. Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign country, having
jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the
parties and their successors in interest by a subsequent title;
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.
There is an evident distinction between a foreign judgment in an action in rem and one in personam. For an
action in rem, the foreign judgment is deemed conclusive upon the title to the thing, while in an
action in personam, the foreign judgment is presumptive, and not conclusive, of a right as between the
parties and their successors in interest by a subsequent title. [21]However, in both cases, the foreign judgment
is susceptible to impeachment in our local courts on the grounds of want of jurisdiction or notice to the party,
[22]
collusion, fraud,[23] or clear mistake of law or fact. [24] Thus, the party aggrieved by the foreign judgment is
entitled to defend against the enforcement of such decision in the local forum. It is essential that there should
be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly
determine its efficacy.[25]
It is clear then that it is usually necessary for an action to be filed in order to enforce a foreign judgment [26],
even if such judgment has conclusive effect as in the case of in rem actions, if only for the purpose of
allowing the losing party an opportunity to challenge the foreign judgment, and in order for the court to
properly determine its efficacy.[27] Consequently, the party attacking a foreign judgment has the burden of
overcoming the presumption of its validity.[28]
The rules are silent as to what initiatory procedure must be undertaken in order to enforce a foreign judgment
in the Philippines. But there is no question that the filing of a civil complaint is an appropriate measure for
such purpose. A civil action is one by which a party sues another for the enforcement or protection of a right,
[29]
and clearly an action to enforce a foreign judgment is in essence a vindication of a right prescinding either
from a conclusive judgment upon title or the presumptive evidence of a right. [30] Absent perhaps a statutory
grant of jurisdiction to a quasi-judicial body, the claim for enforcement of judgment must be brought before
the regular courts.[31]
There are distinctions, nuanced but discernible, between the cause of action arising from the enforcement of
a foreign judgment, and that arising from the facts or allegations that occasioned the foreign judgment. They
may pertain to the same set of facts, but there is an essential difference in the right-duty correlatives that are
sought to be vindicated. For example, in a complaint for damages against a tortfeasor, the cause of action
emanates from the violation of the right of the complainant through the act or omission of the respondent. On
the other hand, in a complaint for the enforcement of a foreign judgment awarding damages from the same
tortfeasor, for the violation of the same right through the same manner of action, the cause of action derives
not from the tortious act but from the foreign judgment itself.
More importantly, the matters for proof are different. Using the above example, the complainant will have to
establish before the court the tortious act or omission committed by the tortfeasor, who in turn is allowed to
rebut these factual allegations or prove extenuating circumstances. Extensive litigation is thus conducted on
the facts, and from there the right to and amount of damages are assessed. On the other hand, in an action to
enforce a foreign judgment, the matter left for proof is the foreign judgment itself, and not the facts from
which it prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally restricted to a review of jurisdiction of
the foreign court, the service of personal notice, collusion, fraud, or mistake of fact or law. The limitations on
review is in consonance with a strong and pervasive policy in all legal systems to limit repetitive litigation on
claims and issues.[32] Otherwise known as the policy of preclusion, it seeks to protect party expectations
resulting from previous litigation, to safeguard against the harassment of defendants, to insure that the task of
courts not be increased by never-ending litigation of the same disputes, and in a larger sense to promote what
Lord Coke in the Ferrers Case of 1599 stated to be the goal of all law: rest and quietness. [33] If every
judgment of a foreign court were reviewable on the merits, the plaintiff would be forced back on his/her
original cause of action, rendering immaterial the previously concluded litigation. [34]
Petitioners appreciate this distinction, and rely upon it to support the proposition that the subject matter of the
complaintthe enforcement of a foreign judgmentis incapable of pecuniary estimation. Admittedly the
proposition, as it applies in this case, is counter-intuitive, and thus deserves strict scrutiny. For in all practical
intents and purposes, the matter at hand is capable of pecuniary estimation, down to the last cent. In the
assailed Order, the respondent judge pounced upon this point without equivocation:
The Rules use the term where the value of the subject matter cannot be estimated. The subject matter of the
present case is the judgment rendered by the foreign court ordering defendant to pay plaintiffs definite sums
of money, as and for compensatory damages. The Court finds that the value of the foreign judgment can be
estimated; indeed, it can even be easily determined. The Court is not minded to distinguish between the
enforcement of a judgment and the amount of said judgment, and separate the two, for purposes of
determining the correct filing fees. Similarly, a plaintiff suing on promissory note for P1 million cannot be
allowed to pay only P400 filing fees (sic), on the reasoning that the subject matter of his suit is not the P1
million, but the enforcement of the promissory note, and that the value of such enforcement cannot be
estimated.[35]
The jurisprudential standard in gauging whether the subject matter of an action is capable of pecuniary
estimation is well-entrenched. The Marcos Estate cites Singsong v. Isabela Sawmill and Raymundo v. Court
of Appeals, which ruled:
[I]n determining whether an action is one the subject matter of which is not capable of pecuniary estimation
this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If
it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation,
and whether jurisdiction is in the municipal courts or in the courts of first instance would depend on the
amount of the claim. However, where the basic issue is something other than the right to recover a sum of
money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, this
Court has considered such actions as cases where the subject of the litigation may not be estimated in terms
of money, and are cognizable exclusively by courts of first instance (now Regional Trial Courts).
On the other hand, petitioners cite the ponencia of Justice JBL Reyes in Lapitan v. Scandia,[36] from which
the rule in Singsong and Raymundo actually derives, but which incorporates this additional nuance omitted in
the latter cases:
xxx However, where the basic issue is something other than the right to recover a sum of money, where the
money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have the
defendant perform his part of the contract (specific performance) and in actions for support, or for
annulment of judgment or to foreclose a mortgage, this Court has considered such actions as cases where
the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts
of first instance.[37]
Petitioners go on to add that among the actions the Court has recognized as being incapable of pecuniary
estimation include legality of conveyances and money deposits, [38] validity of a mortgage, [39] the right to
support,[40] validity of documents,[41] rescission of contracts,[42] specific performance,[43] and validity or
annulment of judgments.[44] It is urged that an action for enforcement of a foreign judgment belongs to the
same class.
This is an intriguing argument, but ultimately it is self-evident that while the subject matter of the action is
undoubtedly the enforcement of a foreign judgment, the effect of a providential award would be the
adjudication of a sum of money. Perhaps in theory, such an action is primarily for the enforcement of the
foreign judgment, but there is a certain obtuseness to that sort of argument since there is no denying that the
enforcement of the foreign judgment will necessarily result in the award of a definite sum of money.
But before we insist upon this conclusion past beyond the point of reckoning, we must examine its possible
ramifications. Petitioners raise the point that a declaration that an action for enforcement of foreign judgment
may be capable of pecuniary estimation might lead to an instance wherein a first level court such as the
Municipal Trial Court would have jurisdiction to enforce a foreign judgment. But under the statute defining
the jurisdiction of first level courts, B.P. 129, such courts are not vested with jurisdiction over actions for the
enforcement of foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts in civil cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts
shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including
the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount
of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such
personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos
(P200,000.00) exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs,
the amount of which must be specifically alleged: Provided, That where there are several claims or causes of
action between the same or different parties, embodied in the same complaint, the amount of the demand
shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose
out of the same or different transactions;
(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in
such cases, the defendant raises the question of ownership in his pleadings and the question of possession
cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to
determine the issue of possession.
(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or
any interest therein where the assessed value of the property or interest therein does not exceed Twenty
thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed
Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation
expenses and costs: Provided, That value of such property shall be determined by the assessed value of the
adjacent lots.[45]
Section 33 of B.P. 129 refers to instances wherein the cause of action or subject matter pertains to an
assertion of rights and interests over property or a sum of money. But as earlier pointed out, the subject
matter of an action to enforce a foreign judgment is the foreign judgment itself, and the cause of action
arising from the adjudication of such judgment.
An examination of Section 19(6), B.P. 129 reveals that the instant complaint for enforcement of a foreign
judgment, even if capable of pecuniary estimation, would fall under the jurisdiction of the Regional Trial
Courts, thus negating the fears of the petitioners. Indeed, an examination of the provision indicates that it can
be relied upon as jurisdictional basis with respect to actions for enforcement of foreign judgments, provided
that no other court or office is vested jurisdiction over such complaint:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions.
Thus, we are comfortable in asserting the obvious, that the complaint to enforce the US District Court
judgment is one capable of pecuniary estimation. But at the same time, it is also an action based on judgment
against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141. What provision then governs
the proper computation of the filing fees over the instant complaint? For this case and other similarly situated
instances, we find that it is covered by Section 7(b)(3), involving as it does, other actions not involving
property.
Notably, the amount paid as docket fees by the petitioners on the premise that it was an action incapable of
pecuniary estimation corresponds to the same amount required for other actions not involving property. The
petitioners thus paid the correct amount of filing fees, and it was a grave abuse of discretion for respondent
judge to have applied instead a clearly inapplicable rule and dismissed the complaint.
There is another consideration of supreme relevance in this case, one which should disabuse the notion that
the doctrine affirmed in this decision is grounded solely on the letter of the procedural rule. We earlier
adverted to the the internationally recognized policy of preclusion, [46] as well as the principles of comity,
utility and convenience of nations [47] as the basis for the evolution of the rule calling for the recognition and
enforcement of foreign judgments. The US Supreme Court in Hilton v. Guyot[48] relied heavily on the concept
of comity, as especially derived from the landmark treatise of Justice Story in his Commentaries on the
Conflict of Laws of 1834.[49] Yet the notion of comity has since been criticized as one of dim contours [50] or
suffering from a number of fallacies.[51] Other conceptual bases for the recognition of foreign judgments have
evolved such as the vested rights theory or the modern doctrine of obligation.[52]
There have been attempts to codify through treaties or multilateral agreements the standards for the
recognition and enforcement of foreign judgments, but these have not borne fruition. The members of the
European Common Market accede to the Judgments Convention, signed in 1978, which eliminates as to
participating countries all of such obstacles to recognition such as reciprocity and rvision au fond.[53] The
most ambitious of these attempts is the Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters, prepared in 1966 by the Hague Conference of International
Law.[54] While it has not received the ratifications needed to have it take effect, [55] it is recognized as
representing current scholarly thought on the topic. [56] Neither the Philippines nor the United States are
signatories to the Convention.
Yet even if there is no unanimity as to the applicable theory behind the recognition and enforcement of
foreign judgments or a universal treaty rendering it obligatory force, there is consensus that the viability of
such recognition and enforcement is essential. Steiner and Vagts note:
. . . The notion of unconnected bodies of national law on private international law, each following a quite
separate path, is not one conducive to the growth of a transnational community encouraging travel and
commerce among its members. There is a contemporary resurgence of writing stressing the identity or
similarity of the values that systems of public and private international law seek to further a community
interest in common, or at least reasonable, rules on these matters in national legal systems. And such generic
principles as reciprocity play an important role in both fields.[57]
Salonga, whose treatise on private international law is of worldwide renown, points out:
Whatever be the theory as to the basis for recognizing foreign judgments, there can be little dispute that the
end is to protect the reasonable expectations and demands of the parties. Where the parties have submitted a
matter for adjudication in the court of one state, and proceedings there are not tainted with irregularity, they
may fairly be expected to submit, within the state or elsewhere, to the enforcement of the judgment issued by
the court.[58]
There is also consensus as to the requisites for recognition of a foreign judgment and the defenses against the
enforcement thereof. As earlier discussed, the exceptions enumerated in Section 48, Rule 39 have remain
unchanged since the time they were adapted in this jurisdiction from long standing American rules. The
requisites and exceptions as delineated under Section 48 are but a restatement of generally accepted
principles of international law. Section 98 of The Restatement, Second, Conflict of Laws, states that a valid
judgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the
United States, and on its face, the term valid brings into play requirements such notions as valid jurisdiction
over the subject matter and parties. [59] Similarly, the notion that fraud or collusion may preclude the
enforcement of a foreign judgment finds affirmation with foreign jurisprudence and commentators, [60] as well
as the doctrine that the foreign judgment must not constitute a clear mistake of law or fact. [61] And finally, it
has been recognized that public policy as a defense to the recognition of judgments serves as an umbrella for
a variety of concerns in international practice which may lead to a denial of recognition. [62]
The viability of the public policy defense against the enforcement of a foreign judgment has been recognized
in this jurisdiction.[63] This defense allows for the application of local standards in reviewing the foreign
judgment, especially when such judgment creates only a presumptive right, as it does in cases wherein the
judgment is against a person.[64] The defense is also recognized within the international sphere, as many civil
law nations adhere to a broad public policy exception which may result in a denial of recognition when the
foreign court, in the light of the choice-of-law rules of the recognizing court, applied the wrong law to the
case.[65] The public policy defense can safeguard against possible abuses to the easy resort to offshore
litigation if it can be demonstrated that the original claim is noxious to our constitutional values.
There is no obligatory rule derived from treaties or conventions that requires the Philippines to recognize
foreign judgments, or allow a procedure for the enforcement thereof. However, generally accepted principles
of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. [66] The classical formulation in international law sees
those customary rules accepted as binding result from the combination two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element known as the opinion
juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring it. [67]
While the definite conceptual parameters of the recognition and enforcement of foreign judgments have not
been authoritatively established, the Court can assert with certainty that such an undertaking is among those
generally accepted principles of international law.[68] As earlier demonstrated, there is a widespread practice
among states accepting in principle the need for such recognition and enforcement, albeit subject to
limitations of varying degrees. The fact that there is no binding universal treaty governing the practice is not
indicative of a widespread rejection of the principle, but only a disagreement as to the imposable specific
rules governing the procedure for recognition and enforcement.
Aside from the widespread practice, it is indubitable that the procedure for recognition and enforcement is
embodied in the rules of law, whether statutory or jurisprudential, adopted in various foreign jurisdictions. In
the Philippines, this is evidenced primarily by Section 48, Rule 39 of the Rules of Court which has existed in
its current form since the early 1900s. Certainly, the Philippine legal system has long ago accepted into its
jurisprudence and procedural rules the viability of an action for enforcement of foreign judgment, as well as
the requisites for such valid enforcement, as derived from internationally accepted doctrines. Again, there
may be distinctions as to the rules adopted by each particular state, [69] but they all prescind from the premise
that there is a rule of law obliging states to allow for, however generally, the recognition and enforcement of
a foreign judgment. The bare principle, to our mind, has attained the status of opinio juris in international
practice.
This is a significant proposition, as it acknowledges that the procedure and requisites outlined in Section 48,
Rule 39 derive their efficacy not merely from the procedural rule, but by virtue of the incorporation clause of
the Constitution. Rules of procedure are promulgated by the Supreme Court, [70] and could very well be
abrogated or revised by the high court itself. Yet the Supreme Court is obliged, as are all State components,
to obey the laws of the land, including generally accepted principles of international law which form part
thereof, such as those ensuring the qualified recognition and enforcement of foreign judgments. [71]
Thus, relative to the enforcement of foreign judgments in the Philippines, it emerges that there is a general
right recognized within our body of laws, and affirmed by the Constitution, to seek recognition and
enforcement of foreign judgments, as well as a right to defend against such enforcement on the grounds of
want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
The preclusion of an action for enforcement of a foreign judgment in this country merely due to an
exhorbitant assessment of docket fees is alien to generally accepted practices and principles in international
law. Indeed, there are grave concerns in conditioning the amount of the filing fee on the pecuniary award or
the value of the property subject of the foreign decision. Such pecuniary award will almost certainly be in
foreign denomination, computed in accordance with the applicable laws and standards of the forum. [72] The
vagaries of inflation, as well as the relative low-income capacity of the Filipino, to date may very well
translate into an award virtually unenforceable in this country, despite its integral validity, if the docket fees
for the enforcement thereof were predicated on the amount of the award sought to be enforced. The theory
adopted by respondent judge and the Marcos Estate may even lead to absurdities, such as if applied to an
award involving real property situated in places such as the United States or Scandinavia where real property
values are inexorably high. We cannot very well require that the filing fee be computed based on the value of
the foreign property as determined by the standards of the country where it is located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids unreasonableness, as it recognizes that the
subject matter of an action for enforcement of a foreign judgment is the foreign judgment itself, and not the
right-duty correlatives that resulted in the foreign judgment. In this particular circumstance, given that the
complaint is lodged against an estate and is based on the US District Courts Final Judgment, this foreign
judgment may, for purposes of classification under the governing procedural rule, be deemed as subsumed
under Section 7(b)(3) of Rule 141, i.e., within the class of all other actions not involving property. Thus, only
the blanket filing fee of minimal amount is required.
Finally, petitioners also invoke Section 11, Article III of the Constitution, which states that [F]ree access to
the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason
of poverty. Since the provision is among the guarantees ensured by the Bill of Rights, it certainly gives rise to
a demandable right. However, now is not the occasion to elaborate on the parameters of this constitutional
right. Given our preceding discussion, it is not necessary to utilize this provision in order to grant the relief
sought by the petitioners. It is axiomatic that the constitutionality of an act will not be resolved by the courts
if the controversy can be settled on other grounds[73] or unless the resolution thereof is indispensable for the
determination of the case.[74]
One more word. It bears noting that Section 48, Rule 39 acknowledges that the Final Judgment is not
conclusive yet, but presumptive evidence of a right of the petitioners against the Marcos Estate. Moreover,
the Marcos Estate is not precluded to present evidence, if any, of want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. This ruling, decisive as it is on the question of filing
fees and no other, does not render verdict on the enforceability of the Final Judgment before the courts under
the jurisdiction of the Philippines, or for that matter any other issue which may legitimately be presented
before the trial court. Such issues are to be litigated before the trial court, but within the confines of the
matters for proof as laid down in Section 48, Rule 39. On the other hand, the speedy resolution of this claim
by the trial court is encouraged, and contumacious delay of the decision on the merits will not be brooked by
this Court.
WHEREFORE, the petition is GRANTED. The assailed orders are NULLIFIED and SET ASIDE, and a
new order REINSTATING Civil Case No. 97-1052 is hereby issued. No costs.
SO ORDERED.
EN BANC
G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR.
ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR.
JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR.
DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk.
There is nothing greater than for a mother to nurture her beloved child straight from her bosom. The ideal is,
of course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk. But how should
this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of
Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International Agreements,
Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid
as it contains provisions that are not constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-
respondent since respondents issued the questioned RIRR in their capacity as officials of said executive
agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue
of the legislative powers granted to the president under the Freedom Constitution. One of the preambular
clauses of the Milk Code states that the law seeks to give effect to Article 11 2 of the International Code of
Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in
1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not
permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said
instrument provides that State Parties should take appropriate measures to diminish infant and child
mortality, and ensure that all segments of society, specially parents and children, are informed of the
advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk
substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a
Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess
of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation
of the provisions of the Constitution in promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The
Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations
(RIRR) issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the land
and may be implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord
with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in
restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global Strategy
on Infant and Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court
adopts the view enunciated in Executive Secretary v. Court of Appeals, 4 to wit:
The modern view is that an association has standing to complain of injuries to its members. This view fuses
the legal identity of an association with that of its members. An association has standing to file suit for its
workers despite its lack of direct interest if its members are affected by the action. An organization has
standing to assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the
representative of any individual, company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities necessary to accomplish the purposes embodied
therein. The respondent is, thus, the appropriate party to assert the rights of its members, because it
and its members are in every practical sense identical. x x x The respondent [association] is but the
medium through which its individual members seek to make more effective the expression of their
voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an
association has the legal personality to represent its members because the results of the case will affect their
vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive
Secretary, that the association is formed "to represent directly or through approved representatives the
pharmaceutical and health care industry before the Philippine Government and any of its agencies, the
medical professions and the general public." 8 Thus, as an organization, petitioner definitely has an interest in
fulfilling its avowed purpose of representing members who are part of the pharmaceutical and health care
industry. Petitioner is duly authorized9to take the appropriate course of action to bring to the attention of
government agencies and the courts any grievance suffered by its members which are directly affected by the
RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the entire
industry, would be remiss in its duties if it fails to act on governmental action that would affect any of its
industry members, no matter how few or numerous they are. Hence, petitioner, whose legal identity is
deemed fused with its members, should be considered as a real party-in-interest which stands to be benefited
or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by respondents are part of
the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending
and expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only the
Milk Code but also various international instruments 10 regarding infant and young child nutrition. It is
respondents' position that said international instruments are deemed part of the law of the land and therefore
the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The United
Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and
Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination Against Women,
only provide in general terms that steps must be taken by State Parties to diminish infant and child mortality
and inform society of the advantages of breastfeeding, ensure the health and well-being of families, and
ensure that women are provided with services and nutrition in connection with pregnancy and lactation. Said
instruments do not contain specific provisions regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are the
ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either
by transformation or incorporation.11 The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to have
the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the
Constitution which provides that "[n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate." Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it to be transformed into
municipal law that can be applied to domestic conflicts. 13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds
of all members of the Senate as required under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law
through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of
law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that
the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of
promotion to the general public of products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials may be allowed if such
materials are duly authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation
in international law sees those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of States; and a psychological
element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory by the existence of a rule of law
requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or customary international law
which are binding on all states, 17 i.e., renunciation of war as an instrument of national policy, the principle of
sovereign immunity,18 a person's right to life, liberty and due process, 19 and pacta sunt servanda,20 among
others. The concept of "generally accepted principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary source of
international law because they have the "character of jus rationale" and are "valid through all kinds of
human societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J.
296). O'Connell holds that certain priniciples are part of international law because they are "basic to legal
systems generally" and hence part of the jus gentium. These principles, he believes, are established by a
process of reasoning based on the common identity of all legal systems. If there should be doubt or
disagreement, one must look to state practice and determine whether the municipal law principle provides a
just and acceptable solution. x x x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of states followed by them
from a sense of legal obligation [opinio juris]." (Restatement) This statement contains the two basic
elements of custom: the material factor, that is, how states behave, and the psychological or subjective
factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states. This includes
several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and the generality of
the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to determine why states
behave the way they do. Do states behave the way they do because they consider it obligatory to behave
thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international rule. Without it, practice is not
law.22(Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system. 23
WHA Resolutions have not been embodied in any local legislation. Have they attained the status of
customary law and should they then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied with the United
Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the 1946 WHO
Constitution, it is the WHA which determines the policies of the WHO, 26 and has the power to adopt
regulations concerning "advertising and labeling of biological, pharmaceutical and similar products moving
in international commerce,"27 and to "make recommendations to members with respect to any matter within
the competence of the Organization."28 The legal effect of its regulations, as opposed to recommendations, is
quite different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any
matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be
required for the adoption of such conventions or agreements, which shall come into force for each
Member when accepted by it in accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health
Assembly of a convention or agreement, take action relative to the acceptance of such convention or
agreement. Each Member shall notify the Director-General of the action taken, and if it does not accept such
convention or agreement within the time limit, it will furnish a statement of the reasons for non-acceptance.
In case of acceptance, each Member agrees to make an annual report to the Director-General in accordance
with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and
quarantine requirements and other procedures designed to prevent the international spread of disease; (b)
nomenclatures with respect to diseases, causes of death and public health practices; (c) standards with respect
to diagnostic procedures for international use; (d) standards with respect to the safety, purity and potency of
biological, pharmaceutical and similar products moving in international commerce; (e) advertising and
labeling of biological, pharmaceutical and similar products moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice
has been given of their adoption by the Health Assembly except for such Members as may notify the
Director-General of rejection or reservations within the period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force for
members, in the same way that conventions or agreements under Article 19 and regulations under Article
21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to
any matter within the competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation would come into
force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally
not binding, but they "carry moral and political weight, as they constitute the judgment on a health issue of
the collective membership of the highest international body in the field of health." 29 Even the ICMBS itself
was adopted as a mere recommendation, as WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the
International Code of Marketing of Breastmilk Substitutes annexed to the present resolution." (Emphasis
supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session,
considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-fourth
World Health Assembly the text of a resolution by which it would adopt the code in the form of a
recommendation rather than a regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO
Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to recommendations made to it
by the Organization, and with respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member
states to implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what has
been done with the ICMBS whereby the legislature enacted most of the provisions into law which is the
Milk Code, the subsequent WHA Resolutions, 30 specifically providing for exclusive breastfeeding from
0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and
practices that influence state behavior.31
"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of
the 1946 Statute of the International Court of Justice. 32 It is, however, an expression of non-binding norms,
principles, and practices that influence state behavior.33 Certain declarations and resolutions of the UN
General Assembly fall under this category.34 The most notable is the UN Declaration of Human Rights,
which this Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Raada37 and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the
mandate to promote and protect intellectual property worldwide, has resorted to soft law as a rapid means of
norm creation, in order "to reflect and respond to the changing needs and demands of its
constituents."39 Other international organizations which have resorted to soft law include the International
Labor Organization and the Food and Agriculture Organization (in the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome
(SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on WHO member states, it
provides an excellent example of the power of "soft law" in international relations. International lawyers
typically distinguish binding rules of international law-"hard law"-from non-binding norms, principles,
and practices that influence state behavior-"soft law." WHO has during its existence generated many soft
law norms, creating a "soft law regime" in international governance for public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for
improved international cooperation on infectious diseases. These resolutions clearly define WHO member
states' normative duty to cooperate fully with other countries and with WHO in connection with infectious
disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is powerful
politically for two reasons. First, the SARS outbreak has taught the lesson that participating in, and
enhancing, international cooperation on infectious disease controls is in a country's self-interest x x x if this
warning is heeded, the "soft law" in the SARS and IHR Resolution could inform the development of general
and consistent state practice on infectious disease surveillance and outbreak response, perhaps crystallizing
eventually into customary international law on infectious disease prevention and control.41
In the Philippines, the executive department implemented certain measures recommended by WHO to
address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003
and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers to close down
schools/establishments, conduct health surveillance and monitoring, and ban importation of poultry and
agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to implement the
IHR Resolution was still considered not binding or enforceable, although said resolutions had great political
influence.
As previously discussed, for an international rule to be considered as customary law, it must be established
that such rule is being followed by states because they consider it obligatory to comply with such rules
(opinio juris). Respondents have not presented any evidence to prove that the WHA Resolutions, although
signed by most of the member states, were in fact enforced or practiced by at least a majority of the member
states; neither have respondents proven that any compliance by member states with said WHA Resolutions
was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international
law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic
law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that
can be implemented by executive agencies without the need of a law enacted by the legislature.
Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions
by virtue of its powers and functions under the Revised Administrative Code even in the absence of a
domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH
shall define the national health policy and implement a national health plan within the framework of the
government's general policies and plans, and issue orders and regulations concerning the implementation
of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of
breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the national health
policy.
Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. or marketing materials and
2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the following policy intended for infants and yo
guidelines: (1) ideal breastfeeding practices, such as early initiation of breastfeeding, exclusive breastfeeding months, shall be allowed, b
for the first six months, extended breastfeeding up to two years and beyond; (2) appropriate complementary subliminal messages or impr
feeding, which is to start at age six months; (3) micronutrient supplementation; (4) universal salt iodization; breastfeeding or otherwise e
(5) the exercise of other feeding options; and (6) feeding in exceptionally difficult circumstances. Indeed, the replacements, as well as rela
primacy of breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O. of this Code.
No. 2005-0014 is it declared that as part of such health policy, the advertisement or promotion of Section 13. "Total Effect" -
breastmilk substitutes should be absolutely prohibited. of this Code must be objecti
The national policy of protection, promotion and support of breastfeeding cannot automatically be equated product appear to be as good
with a total ban on advertising for breastmilk substitutes. in the advertising concept.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising and breastmilk or breastfeeding.
promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said indirectly suggest that buyin
advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a individuals, or resulting i
law amending the Milk Code passed by the constitutionally authorized branch of government, the legislature. harmony or in any manner b
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly such exaggerated and unsubs
implemented by the DOH through the subject RIRR. Section 15. Content of M
Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the included in advertising, prom
Milk Code. a. Texts, pictures, illustration
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following: tend to undermine the bene
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to which idealize the use
"young children" or those from ages two years old and beyond: supplements. In this connect
MILK CODE RIRR together with their mothers,
WHEREAS, in order to ensure that safe and adequate nutrition for Section 2. Purpose relatives or caregivers (or yay
infants is provided, there is a need to protect and promote hereby promulgated to ensure the provision of safe and adequate for infant formula and breastm
breastfeeding and to inform the public about the proper use of nutrition for infants and young children b. The term "humanized," "m
breastmilk substitutes and supplements and related products through and support of breastfeeding and by ensuring the proper use of or similar words in descr
adequate, consistent and objective information and appropriate breastmilk substitutes, breastmilk supplements and related products supplements;
regulation of the marketing and distribution of the said substitutes, when these are medically indicated and only when necessary, on the c. Pictures or texts that ideali
supplements and related products; basis of adequate information and through appropriate marketing Section 16. All health and n
SECTION 4(e). "Infant" means a person falling within the age and distribution. scope of the Code are absol
bracket of 0-12 months. Section 5(ff). "Young Child" means a person from the age of phrase or words that conno
than twelve (12) months up to the age of three (3) years (36 months). abilities of the infant and yo
2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in not be allowed.
certain instances; but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and declares 4. The RIRR imposes additional labeling requirements not found in the Milk Code:
that "there is no substitute nor replacement for breastmilk": MILK CODE RIRR
MILK CODE RIRR SECTION 10. Containers/Label. Section 26. Content Eac
WHEREAS, in order to ensure that safe and adequate nutrition Section 4. Declaration of Principles (a) Containers and/or labels shall be designed to provide the message, in both Filipino
for infants is provided, there is a need to protect and promote underlying principles from which the revisednecessary rules andinformation
regulationsabout the appropriate use of the products, and message cannot be readil
breastfeeding and to inform the public about the proper use of are premised upon: in such a way as not to discourage breastfeeding. following points:
breastmilk substitutes and supplements and related products through a. Exclusive breastfeeding is for infants (b) Each container shall have a clear, conspicuous and easily (a) The words or phrase
adequate, consistent and objective information and appropriate b. There is no substitute or replacement readable and understandable message in Pilipino or English printed Warning" or their equivalent;
regulation of the marketing and distribution of the said substitutes, on it, or on a label, which message can not readily become separated (b) A statement of the superio
supplements and related products; from it, and which shall include the following points: (c) A statement that there is n
3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and (i) the words "Important Notice" or their equivalent; (d) A statement that the produ
promotion; RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for infants (ii) a statement of the superiority of breastfeeding; health worker as to the need
from 0-24 months old or beyond, and forbids the use of health and nutritional claims. Section 13 of the (iii) a statement that the product shall be used only on the advice of use;
RIRR, which provides for a "total effect" in the promotion of products within the scope of the Code, is a health worker as to the need for its use and the proper methods of (e) Instructions for appropria
vague: use; and the health hazards of inappro
MILK CODE RIRR (iv) instructions for appropriate preparation, and a warning against (f) The health hazards of u
the health hazards of inappropriate preparation. formula and other related
SECTION 6. The General Public and Mothers. Section 4. Declaration of Principles
powdered infant formula ma
(a) No advertising, promotion or other marketing materials, whether underlying principles from which the revised rules and regulations
and must be prepared and use
written, audio or visual, for products within the scope of this are premised upon:
Code shall be printed, published, distributed, exhibited and x x x x 5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR
totally prohibits
broadcast unless such materials are duly authorized and approved by f. Advertising, promotions, such activity:
or sponsor-ships
an inter-agency committee created herein pursuant to the applicable breastmilk substitutes and other related products MILK CODE RIRR
standards provided for in this Code. Section 11. Prohibition SECTION 7. Health Care System. Section 22. No manufactur
 (b) No facility of the health care system shall be used for the products covered by the Code shall be allowed to conduct or be recall of the offending produc
purpose of promoting infant formula or other products within the involved in any activity on breastfeeding promotion, education and c) 3rd violation Administr
scope of this Code. This Code does not, however, preclude the production of Information, Education and Communication (IEC) Thousand (P60,000.00) t
dissemination of information to health professionals as provided in materials on breastfeeding, (P150,000.00) Pesos, depend
Section 8(b). classes or seminars for women and children activities and to avoid violation, and in addition ther
SECTION 8. Health Workers. - the use of these venues to market their brands or company names. and suspension of the Certific
(b) Information provided by manufacturers and distributors to health SECTION 16. All health and nutrition claims for products within d) 4th violation Administrati
professionals regarding products within the scope of this Code shall the scope of the Code are absolutely prohibited. For this purpose, Thousand (P200,000.00) to F
be restricted to scientific and factual matters and such information any phrase or words that connotes to increase emotional, intellectual Pesos, depending on the grav
shall not imply or create a belief that bottle-feeding is equivalent or abilities of the infant and young child and other like phrases shall addition thereto, the recall o
superior to breastfeeding. It shall also include the information not be allowed. suspension of the License to O
specified in Section 5(b). e) 5th and succeeding repeate
6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and One Million (P1,000,000.00
continuing education of health professionals; RIRR absolutely forbids the same. product, cancellation of the
MILK CODE RIRR Operate (LTO) of the compan
SECTION 8. Health Workers Section 4. Declaration of Principles of the company to be furn
(e) Manufacturers and distributors of products within the scope of The following are the underlying principles from which the revised Management (DBM) and th
this Code may assist in the research, scholarships and continuing rules and regulations are premised upon: (DTI);
education, of health professionals, in accordance with the rules and i. Milk companies, and their representatives, f) An additional penalty
regulations promulgated by the Ministry of Health. any policymaking body or entity in relation to the advancement of (P2,500.00) Pesos per day sh
breasfeeding. continues after having receive
SECTION 22. No manufacturer, distributor, or representatives of appropriate body, notifying
products covered by the Code shall be allowed to conduct or be infraction.
involved in any activity on breastfeeding promotion, education and For purposes of determinin
production of Information, Education and Communication (IEC) violation, each product violat
materials on breastfeeding, including those of their subsi
classes or seminars for women and children activities the concerned milk company
the use of these venues to market their brands or company names. violating product alone.
SECTION 32. Primary 9. The RIRR provides
Responsibility for repeal
of Health of existing laws to the contrary.
Workers
TheofCourt
the primary responsibility shall resolve
the health workersthetomerits
promote,of the allegations of petitioner seriatim.
protect
and support breastfeeding1. Petitioner is mistaken
and appropriate in its
infant andclaim
young thatchild
the Milk Code's coverage is limited only to children 0-12 months
old. Section 3isoftothecontinuously
feeding. Part of this responsibility Milk Code states:
update their
knowledge and skills SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the
on breastfeeding.
following
logistics or training from products:
milk companies breastmilk
shall be permitted. substitutes, including infant formula; other milk products, foods and
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it. beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be
MILK CODE RIRR suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding bottles
and teats. It also applies to their quality and availability, and to information concerning their use.
SECTION 6. The General Public and Mothers. Section 51. Donations Clearly,
Within the the Scope
coverageof This Code
of the Milk Code is not dependent on the age of the child but on the kind of
(f) Nothing herein contained shall prevent donations from of products, materials, defined productand covered
being undertothethe
marketed Milk CodeThe
public. andlaw treats infant formula, bottle-fed complementary food, and
manufacturers and distributors of products within the scope of this these implementing breastmilkrules and substitute
regulations, shall
as separate and be distinct
strictlyproduct categories.
Code upon request by or with the approval of the Ministry of prohibited. Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal
Health. Section 52. Other Donations
nutritional By requirements
Milk Companies Not Covered
of infants up to between four to six months of age, and adapted to their
by this Code. - Donations of products,
physiological equipments, and
characteristics"; the like,
while undernot Section 4(b), bottle-fed complementary food refers to "any food,
otherwise falling withinwhether
the scope of this Codeor
manufactured orlocally
these Rules, givensuitable as a complement to breastmilk or infant formula, when
prepared,
by milk companies and either
their agents,
becomes representatives,
insufficient towhether
satisfy thein kind
nutritional requirements of the infant." An infant under Section 4(e)
or in cash, may only is abeperson
coursed through
falling withinthethe Inter Agency0-12 months. It is the nourishment of this group of infants or
age bracket
Committee (IAC), which shall determine
children aged 0-12 whether
months thatsuchis donation
sought tobe be promoted and protected by the Milk Code.
accepted or otherwise. But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being
8. The RIRR provides for administrative sanctions not imposed by the Milk Code. marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not suitable for
MILK CODE RIRR that purpose." This section conspicuously lacks reference to any particular age-group of children.
Section 46. Administrative Sanctions.of the
Hence, the provision Milk Code cannot be considered exclusive for children aged 0-12 months .
administrative sanctionsInshall
otherbewords,
imposed upon anysubstitutes
breastmilk person, juridical
may also be intended for young children more than 12 months of age.
or natural, found to have violated the
Therefore, by provisions
regulating of the Code substitutes,
breastmilk and its the Milk Code also intends to protect and promote the
implementing Rules andnourishment
Regulations:of children more than 12 months old.
a) 1st violation Warning;
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section
b) 2nd violation Administrative
3, then it can be finesubject
of a tominimum
regulation of Ten to said law, even if the product is to be used by children aged
pursuant
Thousand (P10,000.00)over to 12Fifty Thousand (P50,000.00) Pesos,
months.
depending on the gravity Thereandis,extent of thenothing
therefore, violation, including with
objectionable the Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that
breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together.
As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule should not be
studied as detached and isolated expressions, but the whole and every part thereof must be considered in
fixing the meaning of any of its parts and in order to produce a harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of
breastmilk substitutes is proper if based on complete and updated information." Section 8 of the RIRR also
states that information and educational materials should include information on the proper use of infant
formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk
substitutes may be proper.
3. The Court shall ascertain the merits of allegations 3 45 and 446 together as they are interlinked with each
other.
To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are
valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as
defined in general under the 1987 Administrative Code,47 and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in
exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need
to further discuss it..48 However, health information, particularly advertising materials on apparently non-
toxic products like breastmilk substitutes and supplements, is a relatively new area for regulation by the
DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands, 50 health information was already
within the ambit of the regulatory powers of the predecessor of DOH. 51 Section 938 thereof charged it with
the duty to protect the health of the people, and vested it with such powers as "(g) the dissemination of
hygienic information among the people and especially the inculcation of knowledge as to the proper care of
infants and the methods of preventing and combating dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy
pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and promote the right
to health of the people and instill health consciousness among them."52 To that end, it was granted under
Section 3 of the Administrative Code the power to "(6) propagate health information and educate the
population on important health, medical and environmental matters which have health implications." 53
When it comes to information regarding nutrition of infants and young children, however, the Milk Code
specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure that
there is adequate, consistent and objective information on breastfeeding and use of breastmilk substitutes,
supplements and related products; and the power to control such information. These are expressly provided
for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of the
provisions of this Code. For this purpose, the Ministry of Health shall have the following powers and
functions:
(1) To promulgate such rules and regulations as are necessary or proper for the implementation of this Code
and the accomplishment of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or incidental to the attainment of the
purposes and objectives of this Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding, for
use by families and those involved in the field of infant nutrition. This responsibility shall cover the planning,
provision, design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis
supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis--
vis breastmilk substitutes, supplement and related products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
infants and intended to reach pregnant women and mothers of infants, shall include clear information on all
the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods or feeding methods; and, in particular,
the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes.
Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within
the scope of this Code shall be restricted to scientific and factual matters, and such information shall
not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also
include the information specified in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use
of the products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to whom such information may be
disseminated under Sections 6 through 9 of the Milk Code 54 to ensure that the information that would reach
pregnant women, mothers of infants, and health professionals and workers in the health care system is
restricted to scientific and factual matters and shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control information regarding
breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not encompass the
power to absolutely prohibit the advertising, marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate marketing and distribution of breastmilk
substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of safe and adequate
nutrition for infants by the protection and promotion of breastfeeding and by ensuring the proper use of
breastmilk substitutes and breastmilk supplements when these are necessary, on the basis of adequate
information and through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and practices related to
breastmilk substitutes, including infant formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and consistent information is
provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not
use any picture or text which may idealize the use of breastmilk substitutes and should include information
on the health hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine
advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health professionals but such
information should be restricted to factual and scientific matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that would discourage
breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling and
advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be a
statement that powdered infant formula may contain pathogenic microorganisms and must be prepared and
used appropriately. Section 1657 of the RIRR prohibits all health and nutrition claims for products within the
scope of the Milk Code, such as claims of increased emotional and intellectual abilities of the infant and
young child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within Minister of Health -------------------
the scope of this Code shall be restricted to scientific and factual matters, and such information shall
not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also include Minister of Trade and Industry -------------------
the information specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms "humanized," "maternalized," or Minister of Justice -------------------
similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief that there Minister of Social Services and Development -------------------
is any milk product equivalent to breastmilk or which is humanized or maternalized, as such information
The members may designate their duly authorized representative to every meeting of the Committee.
would be inconsistent with the superiority of breastfeeding.
The Committee shall have the following powers and functions:
It may be argued that Section 8 of the Milk Code refers only to information given to health workers
(1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or
regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive application of
visual, on products within the scope of this Code;
Section 8(b) will result in the absurd situation in which milk companies and distributors are forbidden to
(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication,
claim to health workers that their products are substitutes or equivalents of breastmilk, and yet be allowed to
distribution, exhibition and broadcast of, all advertising promotion or other marketing materials, whether
display on the containers and labels of their products the exact opposite message. That askewed interpretation
written, audio or visual, on products within the scope of this Code;
of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information
(3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as
regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving the government
the performance of its duties and responsibilities; and
control over planning, provision, design, and dissemination of information on infant feeding.
(4) To promulgate such rules and regulations as are necessary or proper for the implementation of
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a
Section 6(a) of this Code. x x x (Emphasis supplied)
substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring
However, Section 11 of the RIRR, to wit:
circumvention of the protection and promotion of breastfeeding as embodied in Section 260 of the Milk Code.
SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the
for breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall be
Milk Code which reads:
allowed, because they tend to convey or give subliminal messages or impressions that undermine breastmilk
SECTION 5. x x x
and breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as well as related
xxxx
products covered within the scope of this Code.
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk
infants and intended to reach pregnant women and mothers of infants, shall include clear information on all
substitutes in line with the RIRRs declaration of principle under Section 4(f), to wit:
the following points: x x x (5) where needed, the proper use of infant formula, whether manufactured
SECTION 4. Declaration of Principles
industrially or home-prepared. When such materials contain information about the use of infant formula, they
xxxx
shall include the social and financial implications of its use; the health hazards of inappropriate foods or
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related
feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula
products are prohibited.
and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to
of breastmilk substitutes. (Emphasis supplied)
the IAC but also imposed absolute prohibition on advertising, promotion, and marketing.
The label of a product contains information about said product intended for the buyers thereof. The buyers
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof
of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about
for prior approval by IAC of all advertising, marketing and promotional materials prior to dissemination.
the likelihood of pathogenic microorganisms being present in infant formula and other related products when
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the
these are prepared and used inappropriately.
oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually operational, viz:
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to
SOLICITOR GENERAL DEVANADERA:
contaminations and there is as yet no technology that allows production of powdered infant formula that
xxxx
eliminates all forms of contamination.62
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding
prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12
health hazards including the possibility of contamination with pathogenic microorganisms is in accordance
provides is not an absolute prohibition because Section 11 while it states and it is entitled prohibition it states
with Section 5(b) of the Milk Code.
that no advertising, promotion, sponsorship or marketing materials and activities for breast milk substitutes
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and
intended for infants and young children up to 24 months shall be allowed because this is the standard they
supplements and related products cannot be questioned. It is its intervention into the area of advertising,
tend to convey or give subliminal messages or impression undermine that breastmilk or breastfeeding x x x.
promotion, and marketing that is being assailed by petitioner.
We have to read Section 11 together with the other Sections because the other Section, Section 12, provides
In furtherance of Section 6(a) of the Milk Code, to wit:
for the inter agency committee that is empowered to process and evaluate all the advertising and promotion
SECTION 6. The General Public and Mothers.
materials.
(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products
xxxx
within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the
materials are duly authorized and approved by an inter-agency committee created herein pursuant to the
advertisement and the promotions of breastfeeding milk substitutes.
applicable standards provided for in this Code.
xxxx
the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an
Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-
IAC, thus:
Agency Committee that processes and evaluates because there may be some information dissemination that
SECTION 12. Implementation and Monitoring -
are straight forward information dissemination. What the AO 2006 is trying to prevent is any material that
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following
will undermine the practice of breastfeeding, Your Honor.
members is hereby created:
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and
Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority when it totally
banned advertising and promotion under Section 11 prescribed the total effect rule as well as the content of
materials under Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency
Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk
substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes
intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some
advertising and promotional materials, subject to the standards that we have stated earlier, which are- they
should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly
12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has that power to
evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute
regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and
standards have been set. One of which is that, the Inter-Agency Committee can allow if the advertising and
promotions will not undermine breastmilk and breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or
rejection of advertising, promotional, or other marketing materials under Section 12(a) of the Milk Code,
said provision must be related to Section 6 thereof which in turn provides that the rules and regulations must
be "pursuant to the applicable standards provided for in this Code." Said standards are set forth in Sections
5(b), 8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy reference, are quoted
hereunder:
SECTION 5. Information and Education
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
infants and intended to reach pregnant women and mothers of infants, shall include clear information on all
the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial implications of
its use; the health hazards of inappropriate foods of feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use
any picture or text which may idealize the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within
the scope of this Code shall be restricted to scientific and factual matters and such information shall not
imply or create a belief that bottle feeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use
of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable message in
Pilipino or English printed on it, or on a label, which message can not readily become separated from it, and
which shall include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use
and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate
preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of the
Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding, for
use by families and those involved in the field of infant nutrition. This responsibility shall cover the planning,
provision, design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis
supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the standards set
forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional,
or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads
as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and
should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the
advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should
not directly or indirectly suggest that buying their product would produce better individuals, or resulting in
greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and
marketing. Through that single provision, the DOH exercises control over the information content of
advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements
and other related products. It also sets a viable standard against which the IAC may screen such materials
before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice
and equity," "public convenience and welfare," and "simplicity, economy and welfare." 65
In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also finds that
there is no inconsistency between the provisions of the Milk Code and the RIRR. Section 7(b) 66 of the Milk
Code, in relation to Section 8(b)67 of the same Code, allows dissemination of information to health
professionals but such information is restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health
professionals on scientific and factual matters. What it prohibits is the involvement of the manufacturer
and distributor of the products covered by the Code in activities for the promotion, education and production
of Information, Education and Communication (IEC) materials regarding breastfeeding that are intended
for women and children. Said provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and distributors to
extend assistance in research and in the continuing education of health professionals, while Sections 22 and
32 of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i) 69 of the RIRR prohibiting milk
manufacturers' and distributors' participation in any policymaking body in relation to the advancement of
breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any
policymaking body or entity in relation to the advancement of breastfeeding. The Court finds nothing in said
provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it is the DOH
which shall be principally responsible for the implementation and enforcement of the provisions of said
Code. It is entirely up to the DOH to decide which entities to call upon or allow to be part of policymaking
bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in any
policymaking body in relation to the advancement of breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving
reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does not
pertain to research assistance to or the continuing education of health professionals; rather, it deals with
breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR
prohibits milk companies from giving assistance for research or continuing education to health professionals;
hence, petitioner's argument against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR provide
that research assistance for health workers and researchers may be allowed upon approval of an ethics
committee, and with certain disclosure requirements imposed on the milk company and on the
recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational assistance
may be given by milk companies or under what conditions health workers may accept the assistance. Thus,
Sections 9 and 10 of the RIRR imposing limitations on the kind of research done or extent of assistance
given by milk companies are completely in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance, support,
logistics or training to health workers. This provision is within the prerogative given to the DOH under
Section 8(e)74of the Milk Code, which provides that manufacturers and distributors of breastmilk
substitutes may assist in researches, scholarships and the continuing education, of health professionals in
accordance with the rules and regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section
6(f) of the Milk Code provides that donations may be made by manufacturers and distributors of breastmilk
substitutes upon the request or with the approval of the DOH. The law does not proscribe the refusal of
donations. The Milk Code leaves it purely to the discretion of the DOH whether to request or accept such
donations. The DOH then appropriately exercised its discretion through Section 51 75 of the RIRR which sets
forth its policy not to request or approve donations from manufacturers and distributors of breastmilk
substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from
milk companies not covered by the Code should be coursed through the IAC which shall determine whether
such donation should be accepted or refused. As reasoned out by respondents, the DOH is not mandated by
the Milk Code to accept donations. For that matter, no person or entity can be forced to accept a donation.
There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code does not
prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the
Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc. 76 is misplaced. The glaring
difference in said case and the present case before the Court is that, in the Civil Aeronautics Board, the Civil
Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to impose
fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the power to
review on appeal the order or decision of the CAA and to determine whether to impose, remit, mitigate,
increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing
administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld the
Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The
circular provided for fines for the commission of prohibited acts. The Court found that nothing in the circular
contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose
fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority
to fix or impose administrative fines. Thus, without any express grant of power to fix or impose such fines,
the DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its authority by
providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk
Code authorizes the DOH to "cause the prosecution of the violators of this Code and other pertinent laws on
products covered by this Code." Section 13 of the Milk Code provides for the penalties to be imposed on
violators of the provision of the Milk Code or the rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to
this Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year imprisonment
or a fine of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos
(P30,000.00) or both. Should the offense be committed by a juridical person, the chairman of the Board of
Directors, the president, general manager, or the partners and/or the persons directly responsible therefor,
shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker, distributor,
manufacturer, or marketing firm or personnel for the practice of their profession or occupation, or for the
pursuit of their business, may, upon recommendation of the Ministry of Health, be suspended or revoked in
the event of repeated violations of this Code, or of the rules and regulations issued pursuant to this Code.
(Emphasis supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is
frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof
inconsistent with these revised rules and implementing regulations are hereby repealed or modified
accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and
regulations. Thus, said provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to
make rules and regulations which results in delegated legislation that is within the confines of the granting
statute and the Constitution, and subject to the doctrine of non-delegability and separability of powers. 78 Such
express grant of rule-making power necessarily includes the power to amend, revise, alter, or repeal the
same.79 This is to allow administrative agencies flexibility in formulating and adjusting the details and
manner by which they are to implement the provisions of a law, 80 in order to make it more responsive to the
times. Hence, it is a standard provision in administrative rules that prior issuances of administrative agencies
that are inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in
contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the RIRR are in
consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and oppressive,
and is offensive to the due process clause of the Constitution, insofar as the same is in restraint of
trade and because a provision therein is inadequate to provide the public with a comprehensible basis to
determine whether or not they have committed a violation. 81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that suppress
the trade of milk and, thus, violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to some form of regulation for
the public good. Public interest must be upheld over business interests. 90 In Pest Management Association of
the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut
Authority, despite the fact that "our present Constitution enshrines free enterprise as a policy, it
nonetheless reserves to the government the power to intervene whenever necessary to promote the
general welfare." There can be no question that the unregulated use or proliferation of pesticides would be
hazardous to our environment. Thus, in the aforecited case, the Court declared that "free enterprise does not
call for removal of protective regulations." x x x It must be clearly explained and proven by
competent evidence just exactly how such protective regulation would result in the restraint of
trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers participation in any
policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the giving of
assistance, support and logistics or training (Section 32); and the giving of donations (Section 52) would
unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that the proscribed The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions
activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the of Administrative Order No. 2006-0012 is concerned.
aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade. SO ORDERED.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive.
Said section provides for the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula,
follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any other
description of such nature, including their representatives who promote or otherwise advance their
commercial interests in marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in the
business (whether directly or indirectly) of marketing at the wholesale or retail level a product within the
scope of this Code. A "primary distributor" is a manufacturer's sales agent, representative, national distributor
or broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public or private sector engaged in the business
or function (whether directly or indirectly or through an agent or and entity controlled by or under contract
with it) of manufacturing a products within the scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk company" the entities
defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR also enumerated in
Section 5(w) the products manufactured or distributed by an entity that would qualify it as a "milk company,"
whereas in the Milk Code, what is used is the phrase "products within the scope of this Code." Those are the
only differences between the definitions given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors,
the Court sees no harm in the RIRR providing for just one term to encompass both entities. The definition of
"milk company" in the RIRR and the definitions of "distributor" and "manufacturer" provided for under the
Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about
any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk substitutes, as
defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective,
purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public
health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of trade nor are they
violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order
No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of
Health and respondents are PROHIBITED from implementing said provisions.